IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100006977 


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 to honorable.

2.  The applicant states:

* he feels an injustice was done when he was issued an other than honorable conditions discharge because of conduct that was not in keeping with the good of the service
* the injustice was that no one considered his mental and emotional condition caused by his service in the U.S. Marine Corps (USMC) in Vietnam
* upon his discharge from the USMC he found it difficult to associate in close proximity with people at work or socially
* he was identified as a knowledgeable worker but a hazard to be with
* after struggling with three jobs he decided to join the Army
* he joined the Army and soon found the existence of nearness at work and in the barracks of fellow Soldiers strained his control and he had frequent outbursts and was repeatedly chastised by his superiors for his conduct
* he was considered just another crazy Marine Vietnam veteran
* he was offered no counseling or help and ran to what he considered a safe place in utter frustration as a result
* he did not intend to remain away, but as time progressed and his emotions continued he did not return
* upon his return he was offered no help, assistance, or guidance and he opted for discharge
* had his condition been evaluated and had he been given help, he believes he would have had a chance of survival in the Army
* he has an honorable discharge from the USMC

3.  The applicant provides a letter, dated 24 December 2009, from the Chairman, Vietnam Veterans of America, with six enclosures outlined on page 4.

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 in the USMC on 9 June 1969 for a period of 4 years.  He served in Vietnam from 3 August 1972 to 15 May 1973 and was honorably released from active duty on 31 May 1973.

3.  On 24 March 1975, the applicant underwent an enlistment physical examination and was found qualified for enlistment in the Regular Army.  He reported he was in good health and taking no medications on his Standard Form 93 (Report of Medical History), dated 24 March 1975.  He enlisted in the Regular Army on 30 April 1975 in pay grade E-4 for a period of 3 years.  He trained as a ground surveillance radar crewman.

4.  On 3 February 1976, the applicant went absent without leave (AWOL) and returned to military control on 23 March 1976.  Charges were preferred against the applicant for the AWOL period.

5.  On 23 March 1976, the applicant underwent a mental status evaluation and was found mentally responsible.

6.  On 23 March 1976, the applicant underwent a separation physical examination and was found qualified for separation.  He also recorded, "I am in good health" on his Standard Form 93, dated 23 March 1976.

7.  On 23 March 1976 after consulting with 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 in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated he was unable to conform to the required amount of regimentation, he was in the USMC for 4 years and received an honorable discharge, he could not readjust to military life, and he went AWOL due to hardship on his family.

8.  The unit commander recommended the applicant be issued a general discharge.  The intermediate commander recommended the applicant be issued an undesirable discharge.

9.  On 14 April 1976, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 6 May 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 10 months and 17 days of creditable active service with 49 days of lost time.

11.  In support of his claim, the applicant provided a letter, dated 24 December 2009, from the Chairman, Vietnam Veterans of America.  In summary, he states:

* the applicant has been under the care of his physician for more than 10 years and one of the major problems encountered in his care was post-traumatic stress disorder (PTSD) caused by his duties while serving in Vietnam as a U.S. Marine
* the applicant endured additional stress when he was discharged from the Army
* the applicant became bored and depressed in the Army
* the applicant suffered harassment while in the Army and decided to go AWOL
* he believes had the applicant been counseled and worked with as our troops are now, the applicant would not have gone AWOL and probably would have served in an honorable capacity
* in the 1970's PTSD was not known and military persons returning from Vietnam were immediately identified as problems and intentionally harassed because of that service
* that the applicant was offered a voluntary discharge in lieu of trial by court-martial clearly indicates the Army was willing to quickly and easily get rid of this problem and was unwilling to determine the cause or try to correct it
* the military, Department of Veterans Affairs, and government denied PTSD diagnoses to Vietnam veterans based on the Army policy espoused by Dr. Satel whose theory was that "PTSD does not exist" and that all veterans are fakers
* this theory prevailed until the late 1980's when PTSD became a reality; however, thousands of Vietnam veterans were denied diagnoses, treatment, and compensation for their service and the trauma they lived through
* the applicant was unjustly removed from the service, not because of criminal activity, but rather he was a Vietnam veteran who was a non-conformist who had problems of his own making and there was no place or help for him

12.  The applicant provided a letter, dated November 2009, from his physician.  He attests the applicant has been his patient for over 10 years and he is treating the applicant for atherosclerotic coronary heart disease, type II diabetes, hypercholesterolemia, hypogonadism, obstructive sleep apnea, anxiety, and PTSD.  His physician also indicated the applicant's problems, in his opinion, are as likely as not directly related to his combat experiences and Agent Orange exposure.

13.  The applicant also provided a letter from the President, Vietnam Veterans of America.  He attests:

* he has known the applicant for 8 years
* the applicant is a solid, hard working individual
* he has difficulty associating with members of the chapter and is somewhat anti-social
* at meetings he sits with his back to the wall, moves reluctantly through the group, and secludes himself from gatherings
* he will assist in any task he is asked to participate in, but it must be on his terms and only if he can do it by himself
* he works for a company that allows him to be an individual employee
* he is a great person one on one and it would be great to have him with them in the group altogether and not alone and apart


14.  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.

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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.

16.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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 contends his discharge is unjust because no one considered his mental and emotional condition caused by his service in the USMC in Vietnam.  However, there is no evidence to show he was having mental problems in 1975/1976 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  The medical evidence of record shows he was found qualified for enlistment in the Regular Army on 24 March 1975 and he reported he was in good health.  The medical evidence of record, dated 23 March 1976, also shows he was found mentally responsible and qualified for separation and he reported he was in good health.

2.  Although the applicant now contends that he went AWOL due to mental problems, the evidence of record shows that on 23 March 1976 he indicated he went AWOL because he was unable to conform to the required amount of regimentation, he could not readjust to military life, and family hardship.

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

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service included 49 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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)                                         AR20100006977



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ABCMR Record of Proceedings (cont)                                         AR20100006977



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