BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090019801 


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 that his second discharge, an undesirable discharge (UD), be upgraded to honorable.

2.  The applicant states he has been diagnosed as suffering from post-traumatic stress disorder (PTSD).  The character of discharge on his second DD Form 214 (Report of Separation from Active Duty) is preventing him from getting and keeping a good job.

3.  The applicant provides no supporting documentation.

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted on 31 August 1970 and served in Vietnam from 28 July 1971 through 27 July 1972.  On 30 August 1973 he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  His DD Form 214 for this period shows 3 years of creditable service with no time lost.  His awards are shown as the National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), Aircraft Crewman Badge, Army Commendation Medal, Air Medal (8th Award), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Army Good Conduct Medal.

4.  During the applicant's period of inactive service he married and on 12 November 1974 he again enlisted.

5.  While still in training he was absent without leave (AWOL) from 24 February 1975 through 2 April 1975, returning voluntarily.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for this offense.

6.  On 16 April 1975, he went AWOL and remained absent until 25 May 1975 when he was returned to military control by civilian authorities.

7.  On 29 May 1975, he went AWOL and remained absent until 17 August 1975 when he was returned to military control by civilian authorities.

8.  On 8 September 1975, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UD Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

9.  In his statements requesting separation, the applicant indicated he was having financial and family problems.  He stated that if he was not discharged he would continue to go AWOL.

10.  His unit commander stated that his work was above average when he was present for duty and recommended a general discharge (GD).  The battalion commander stated that the applicant had proven that he was unreliable and, although when present he had performed above average, his period of AWOL and inability to resolve his financial problems were not in keeping with the standards of the military service.  He also recommended a GD.

11.  On 6 October 1975, the general court-martial authority approved the separation, directed the applicant be reduced to the lowest enlisted grade, and issued a UD.

12.  The applicant was discharged under other than honorable conditions on 9 October 1975 with 170 days of creditable service and 158 days of lost time during this period.

13.  On 21 July 1981 the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the purpose and policies for enlisted personnel separations.  Chapter 1, in effect at that time, provided the following:

	a.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  A Soldier will not necessarily be denied an HD solely by reason of a specific number of convictions by court-martial or actions under Article 15, UCMJ.  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

	c.  A GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory, but not so meritorious as to warrant an honorable discharge.

	d.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct or in lieu of trial by court martial when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army.  At the time, the discharge was referred to as a UD.

	e.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he has been diagnosed as suffering from PTSD.  The character of discharge on his second DD Form 214 is preventing him from getting and keeping a good job.

2.  At the time of his separation the applicant gave no indication that he was suffering from any mental, emotional, psychological, or psychiatric problem.  More importantly, he specifically stated that if he were not discharged, he would continue to go AWOL and his last two AWOL's ended by civilian apprehension.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offences for which he requested discharge and is appropriate for applicant's overall record of military service during his second enlistment.

4.  The applicant has failed to provide any evidence that he is currently or was suffering from PTSD or any other mental, emotional, psychological, or psychiatric problems at the time of his misconduct.

5.  In the absence of evidence that at the time of the discharge or of the behavior that led to the discharge the applicant was so impaired by mental, emotional, psychological, or psychiatric problems as to be unable to tell right from wrong and adhere to the right, the current diagnoses do nothing to demonstrate an injustice in the discharge.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090019801



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ABCMR Record of Proceedings (cont)                                         AR20090019801



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