BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100001048 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states the character of his discharge does not reflect his service.  He was awarded the Combat Infantryman Badge and contributed good service.  His first absence without leave (AWOL) was just prior to his deployment to the Republic of Vietnam.  He was apprehensive about dying and went on a 
3-day binge.  Another time, while in the combat theater, he was listed as AWOL when he actually was in the hospital.  At the time he did not care about the mistake, thinking "what's the worst they could do to me, send me back to the states."

3.  When the applicant returned to the United States he was assigned to Dover Air Force Base where he participated in the processing of cadavers.  Soon after arriving at this assignment a close friend and former member of his platoon in Vietnam contacted him.  They were driving to Walter Reed Army Medical Center when they had a car accident.  The resulting death of his close friend and assignment at the massive morgue was more than he could psychologically withstand.

4.  Post traumatic stress disorder (PTSD) manifested itself in acute avoidance patterns, along with poor decision making characteristics of sleep disorder, guilt, anger and emotional numbing.  He has worked diligently to confront his issues and to salvage his life and make it purposeful.  He has regained his ability to contribute to his community, family and country.  He is married and has raised one child who is currently in the National Guard.  He has learned to control his impulsive and avoidance behaviors.  He has a good work history, successful marriage and no involvement with civil authorities.

5.  The applicant also states that he has had PTSD from the time he was in the Republic of Vietnam.  He was not diagnosed with or offered any medical treatment because PTSD was not recognized at that time.  He believes if he had received proper care he would have redirected his emotional and psychological health sufficiently to have been able to complete his military service honorably, or to have been discharged with a PTSD diagnosis and receive Department of Veterans Affairs (VA) benefits.
 
6.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter from the Redwoods Vet Center, dated 9 December 2009; a newspaper obituary; a letter from the State of California Department of Justice, dated 11 June 2009; four letters of support; and a summary of his earnings for the years from 1965 through 2008.

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.  On 17 February 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant departed Fort Polk, Louisiana on or about 29 August 1966 for duty in the Republic of Vietnam.



4.  The applicant's available records show he accepted nonjudicial punishment (NJP) on 12 December 1966, for a 3-day AWOL while enroute to the Republic of Vietnam.

5.  The applicant served as a gunner and ammunition bearer with the 1st Battalion, 16th Infantry Regiment in the Republic of Vietnam from 27 December 1966 to 16 December 1967.  He was awarded the Combat Infantryman Badge.

6.  On 31 May 1967, the applicant was advanced to specialist four, pay 
grade E-4.

7.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the following periods of AWOL and confinement:

	a.  3 days from 3 to 5 December 1966;

	b.  5 days from 3 to 7 October 1967;

	c.  37 days from 6 April to 12 May 1968;

	d.  9 days from 2 to 10 July 1968;

	e.  11 days from 1 to 11 August 1968;

	f.  376 days from 18 November 1968 to 28 November 1969;

	g.  51 days from 6 January to 25 February 1970;

	h.  25 days from 20 March to 13 April 1970; and

	i.  confinement commencing on 29 April 1970.

8.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 shows that he was administratively discharged on 
16 July 1970, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 3 years of creditable active duty service and had 517 days of lost time due to AWOL and confinement.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.
13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
14.  The four letters of support provided by the applicant essentially state that he has always been honest, fair and trustworthy.  He is a sincere and caring individual who shows concern for others and takes responsibility for his own actions.

15.   The letter from the State of California Department of Justice, dated 11 June 2009, states that a search of fingerprint records failed to identify in the records maintained by that bureau of any criminal history for the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to honorable because he suffered from PTSD that resulted from his service in the Republic of Vietnam.

2.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's record of good service is greatly diminished by his numerous periods of AWOL and outweighed by the circumstances of the discharge.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

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 the aforementioned requirement.

7.  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)                                         AR20100001048





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (c