IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007345 


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, that his general discharge under honorable conditions, which was upgraded by the Department of Defense (DOD) Special Discharge Review Program (SDRP), be affirmed or upgraded to fully honorable.

2.  The applicant states:

* He served his country to the best of his ability
* He was in the infantry when he was in Vietnam 
* He was also an airborne paratrooper
* When he came home he was "messed up" and for years he didn't know why

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and his General Discharge Certificate.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel makes no additional requests with respect to the applicant's request.

2.  Counsel makes no additional statements. 





3.  Counsel provides letters from the following:

* The applicant to the Board dated 16 March 2010
* A licensed psychologist dated 18 January 2010
* The Department of Veterans Affairs (VA) dated 28 January 2010
* The VA dated 17 February 2010
* The Adjutant General dated 27 July 1977
* The VA dated 24 November 1982

4.  Counsel also provides an undated VA Statement in Support of Claim and a VA letter dated 17 November 2009 notifying the applicant of the decision made in his case.

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 2 December 1966, the applicant enlisted in the Regular Army for 3 years, in the pay grade of E-1, and he completed training as a clerk.  

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 7 February 1967 for being absent without leave (AWOL) from 2 February until 
5 February 1967.  His punishment included a forfeiture of pay.

4.  The applicant was promoted to the pay grade of E-2 on 2 April 1967.

5.  On 26 June 1967, the applicant was convicted by a special court-martial of being AWOL from 10 May to 22 May 1967.  

6.  The applicant had NJP imposed against him on 10 October 1967 for being AWOL from 18 September to 29 September 1967.  

7.  The applicant arrived in Vietnam on 14 February 1968.  He departed Vietnam enroute to the Continental United States (CONUS) on 10 July 1968.

8.  On 16 October 1968, NJP was imposed against him for being derelict in the performance of his duties and for failure to be at his appointed place of duty.  

9.  The applicant had NJP imposed against him on 12 December 1968 for being AWOL from 30 November to 6 December 1968.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

10.  On 17 November 1969, the applicant was notified that charges were pending against him for being AWOL from 7 June to 5 August 1969 and from 22 August to 12 November 1969.  He acknowledged receipt of the notification and, after consulting with counsel on 14 November 1969, he waived his rights and submitted a request for discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

11.  The appropriate authority approved the request for discharge on 3 December 1969 and he directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 3 December 1969, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years, 7 months, and 11 days of total active service and he had approximately 141 days of lost time due to being AWOL and in confinement.  He was furnished an Undesirable Discharge Certificate.

12.  On 27 July 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's undesirable discharge to a general discharge under the DOD-SDRP based on "a record of satisfactory active military service for 24 months prior to his discharge."

13.  On 25 April 1979 and 9 July 1980, the ADRB voted not to affirm his general discharge and to deny an upgrade to fully honorable.

14.  In the supporting documents submitted by the applicant and his counsel it is noted that he was diagnosed by the VA with the following conditions:

* Post Traumatic Stress Disorder, Chronic
* Epididmides (per self-report), Urethral Stricture, "ED," Lower back pain
* Limited social support, interpersonal difficulties, unemployed, history of suicide attempts


15.  The supporting documents also show:

* He has been engaged in substance abuse treatment since June 2009
* He has been in the process of reconnecting with family, church and community activities
* His post service medical treatment and post service conduct
* He was notified in a letter dated 17 November 2009 that his service was not honorable for VA purposes

16.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and           28 March 1973.  This program, known as the DOD Discharge Review Program (Special) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

17.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed 
upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

18.  Army Regulation 635-200 (Enlisted Separations) 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. 

19.  Paragraph 3-7a of Army Regulation 635-200 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.  

20.  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 was discharged in accordance with applicable laws and regulations in effect at that time.

2.  The type of discharge directed was appropriate consideration all the facts of his case.

3.  The evidence and contentions provided by the applicant and his counsel are not sufficiently mitigating to warrant an upgrade or affirmation of his discharge, as his service did not meet the standards of acceptable conduct and performance of duty for Army personnel nor was his service so meritorious that any other characterization would be clearly inappropriate.

4.  His records show he had a habit of going AWOL.  He had NJP imposed against him twice and he was convicted by a special court-martial as a result of being AWOL.  These acts of misconduct occurred prior to his transfer to Vietnam. 

5.  He was in Vietnam for 5 months and once he returned to CONUS he continued to go AWOL until he chose to submit a request for discharge for the good of the service in lieu of trial by court-martial.  As previously stated, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.


6.  There is no evidence in the available record showing he was ever diagnosed with PTSD while he was in the Army.  The evidence he submitted shows he became engaged in substance abuse treatment in June 2009, which is almost 40 years after his discharge from the Army.

7.  The action taken to upgrade his discharge under the DOD-SDRP from undesirable to general has also been considered.  However, it is not a basis for granting the requested relief.

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)                                         AR20100007345



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ABCMR Record of Proceedings (cont)                                         AR20100007345



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