IN THE CASE OF:	 

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021209 


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, in effect, update of his undesirable discharge.

2.  The applicant states that while he accepts any errors in his behavior, he was under a lot of psychological stress during his active duty service and he has now been diagnosed as having post-traumatic stress disorder (PTSD).

3.  The applicant provides:

* Copies of his Department of Veterans Affairs (VA) Progress Notes
* Two self-authored letters
* Four third-party letters of support
* A list of his medications
* A copy of the facts and circumstances surrounding his administrative discharge
* A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel does not provide a statement or any additional documents with the application.


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 was born on 17 August 1950 and he was inducted in New Orleans, LA on 23 June 1970.  He completed his basic combat training at Fort Polk, LA and he was transferred to Fort Sill, OK for advanced individual training in military occupational specialty (MOS) 17A (combat surveillance and target acquisition crewman).  He completed his training and he remained assigned to Fort Sill for his first permanent duty station.

3.  On 11 February 1971, he was convicted by a summary court-martial of being absent without leave (AWOL) from 30 December 1970 to 2 February 1971.  He was sentenced to confinement at hard labor for 30 days and a forfeiture of pay.

4.  On 3 June 1971, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 1-2 June 1971.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty.

5.  On 30 September 1971, he was transferred to Vietnam for assignment to Company D, 17th Infantry at Cam Ranh Bay.

6.  On 18 October 1971, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty (guard mount).  His punishment consisted of a forfeiture of pay.

7.  On 20 December 1971, NJP was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer (NCO).  His punishment consisted of a forfeiture of pay.


8.  On 12 January 1972, NJP was imposed against him for participating in a breach of peace.  His punishment consisted of a reduction to the pay grade of 
E-1 and a forfeiture of pay.

9.  On 10 January 1972, charges were preferred against him for being derelict in the performance of his duties while performing guard duty and disobeying a lawful order from a superior NCO.

10.  On 25 January 1972, additional charges were preferred against the applicant for sleeping on guard duty while in Tower #1 of the Ammunition Storage Area.

11.  On 26 January 1972, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood that if his request was accepted he would be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate.  He also elected not to submit a statement in his own behalf.

12.  The appropriate authority approved his request for discharge on 12 February 1972 and directed that he be furnished an Undesirable Discharge Certificate.

13.  Accordingly, he was discharged on 25 February 1972, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and issued an Undesirable Discharge Certificate.  He had served 1 year, 5 months, and 22 days of total active service, of which 4 months and 26 days were served in Vietnam.  He had 71 days of time lost due to AWOL and confinement.  At the time of his discharge he acknowledged that he understood he could apply to the Army Discharge Review Board (ADRB) for a review of his discharge.

14.  There is no evidence in the available records to show that the applicant ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  


Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by 
court-martial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  The applicant's contentions and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct and his overall record of service.

5.  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)                                         AR20090021209



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ABCMR Record of Proceedings (cont)                                         AR20090021209



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