IN THE CASE OF:
BOARD DATE: 13 May 2010
DOCKET NUMBER: AR20090019418
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests his undesirable discharge be upgraded.
2. The applicant states after leaving Vietnam he suffered from fatigue and he did not want to go to Germany in his state of mind.
3. The applicant provides a Post-Traumatic Stress Disorder (PTSD) residential program certificate of completion.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show he was inducted into the Army of the United States on 17 April 1969, and he was awarded military occupational specialty of armorer/unit supply specialist. He served in Vietnam as a supply specialist from 21 September 1969 to 20 September 1970.
3. On 14 August 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for wrongfully appropriating a three-quarter ton truck and for leaving his appointed place of duty.
4. On 11 September 1970, the applicant accepted another NJP for willfully disobeying a lawful command.
5. On 16 July 1970, the applicant was convicted by a special court-martial, contrary to his pleas for:
* punching a military policeman in the stomach and throat with his fists
* resisting lawful apprehension
* behaving disrespectful towards a captain by using inappropriate language
* being disorderly in the military police station by shouting loudly and cursing at military policemen
* communicating a threat to injure a military policeman by saying to him "when I get out of here I'm gonna kill you"
6. On 1 October 1971, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from:
* 27 October 1970 to 17 February 1971
* 26 March to 12 April 1971
* 12 April to 7 September 1971
7. On 12 October 1970, the applicant requested discharge in lieu of court-martial for the convenience of the Government.
8. The applicant's request was approved by the appropriate authority. Accordingly, on 8 November 1971 the applicant was issued an undesirable discharge. His awards and decorations include the Combat Infantryman Badge.
9. Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's blatant disrespect for authority figures, violence towards authority figures, disregard for military regulations, and his repeated lengthy periods of AWOL certainly warranted an undesirable discharge.
2. While the applicant now states he suffered from PTSD while on active duty, there is no evidence to support this contention. A PTSD course taken 35 years after his discharge does not establish that the applicant suffered from PTSD at the time of his discharge.
3. However, even if it could be shown that the applicant suffered from PTSD while on active duty it would not excuse his behavior or, therefore, form a basis for upgrading his discharge.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X___ ____X___ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20090019418
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