BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008813 


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 reconsideration of his request for upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states his first period of service included 12 months of combat duty in Vietnam and he was given an honorable character of service for that period of service.

   a.  Following his tour of duty in Vietnam he began to have psychological issues that eventually led to his under other than honorable conditions discharge.  He adds that he was never referred for treatment despite clear signs that he was troubled.

   b.  He states that since the Army Board for Correction of Military Records (ABCMR) decision on his original request, he has been diagnosed by a psychiatrist for post traumatic stress disorder (PTSD).  He adds that Army officials are now better trained to recognize Soldiers with potential PTSD symptoms and to take action to have them treated.

   c.  He states that the Board determined he had "a record of misconduct before he ever went to airborne training."  He acknowledges he received an Article 15 for absenting himself and he provides the background that led to the nonjudicial punishment (NJP); however, he asserts that his chain of command ignored the facts.

   d.  He states that he wrote several times to Fort George G. Meade, MD, and to his congressman to get his discharge upgraded, but he never received a reply from the Army.

3.  The applicant provides a copy of a:

* self-authored statement on a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 4 February 2009
* self-authored statement on a VA Form 21-0781 (Statement in Support of  Claim for Service Connection for PTSD, dated 20 December 2009
* statement from a medical doctor from the Ohio Psychiatric Associates, Inc., Psychiatric Evaluations and Counseling, dated 22 December 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090004232, on 2 June 2009.

2.  The applicant submitted two self-authored statements and a statement from a medical doctor which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and as such warrant consideration by the Board.

3  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 May 1969 shows he was inducted into the Army of the United States on 15 June 1967, he completed initial training, and he was awarded military occupational specialty 12B (Combat Engineer).

   a.  He was honorably discharged on 5 May 1969 for immediate reenlistment.

   b.  At the time he had completed 1 year, 10 months, and 21 days of net active service this period and 1 year of foreign service in Vietnam.

   c.  Item 14 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal [with Device (1960)], and two Overseas Service Bars.

4. On 6 May 1969, the applicant reenlisted in the Regular Army for a period of
4 years.

5.  After his reenlistment, the applicant received NJP on two occasions.  The first was for being absent without authority from his unit on 13 June 1969, and the second for being absent without leave (AWOL) during the period from 7 July to 12 July 1969.

6.  On 24 July 1969, the applicant departed Fort Benning, GA, for duty in Europe.  There is no evidence showing that he reported for duty with the United States Army, Europe.

7.  On 11 March 1970, the applicant was convicted by a special court-martial of AWOL (two specifications) and of escape from lawful confinement in the post stockade.  His sentence consisted of confinement at hard labor for 4 months and reduction to private (PV1)/E-1.  He served 92 days in confinement and he was released on 19 May 1970.

8.  On 28 January 1971, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 by being AWOL during the period 20 May 1970 to 9 January 1971.

   a.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

   b.  He voluntarily requested 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.
   
   c.  The separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 for this period shows he was discharged on
11 February 1971 in accordance with Army Regulation 635-200, chapter 10, for the good of the service, with service characterized as under other than honorable conditions.

   a.  At the time he had completed 7 months and 24 days of net active service this period with 1 year, 10 months, and 21 days of other service [his first period of service] for a total of 2 years, 6 months, and 15 days of active service.


   b.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show the applicant's periods of AWOL and that he had 409 days lost under Title 10,
U.S. Code, section 972.

10.  A DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated 3 December 1981, shows the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

	a.  In his application, the applicant stated one month after his reenlistment "[m]y newly [sic] marriage was in trouble.  My wife was running around with other men.  I nearly lost my mind."  He also indicated, "I was cut orders for Germany, she wouldn't go with me.  I nearly lost my mind knowing she was sleeping with other men."

   b.  There is no evidence the ADRB acted on the application within its 15-year statute of limitations.

   c.   A Congressional letter, dated 24 August 1988, from the office of the Honorable Clarence E. M-----, Tenth District, Ohio, states "[t]his is an original request for Review of Discharge.  It appears this was put in the file and never sent anywhere.  It may explain why [the applicant] never heard anything."  [The DD Form 293 is dated 3 December 1981.]

   d.  On 9 September 1988, the ADRB notified the Honorable M----- that the matter is one that should more properly come before the ABCMR.  An application and the address for the ABCMR were also provided.

11.  The applicant submitted his original request to the ABCMR on 9 July 2008.
In that application he contended that his discharge was unjust because career Soldiers harassed him and forced him out of the Army.  On 2 June 2009, after consideration of the applicant's request and his military personnel records, the ABCMR denied his request.

12.  In support of his request for reconsideration, the applicant provides the following documents:

   a.  two self-authored statements to the VA in support of his claim for service-connection for PTSD, in which he describes two incidents in Vietnam (in April and December 1968) during which he was involved in actions against the enemy and witnessed Soldiers killed and severely wounded.  He also describes the psychological problems he experienced after leaving the Army; and

   b.  an Ohio Psychiatric Associates, Inc., Psychiatric Evaluation and Counseling, letter, dated 22 December 2009, that shows Doctor Mukesh R------- confirmed the applicant is a former patient of his and had a diagnosis of PTSD and depression at the time he was seeing him.

13.  The Manual for Courts-Martial (MCM), Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for AWOL of more than 30 days.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  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 Veterans Administration 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.  

   b.  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.

   c.  Paragraph 1-9f (Undesirable discharge), in effect at the time, states an undesirable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for unfitness, misconduct,
homosexuality, or for security reasons.  An undesirable discharge will be directed only by a commander exercising general court-martial jurisdiction, a general officer in command who has a judge advocate officer on his staff (if authority has been delegated to him pursuant to applicable Army regulations for cases arising in his command), or by higher authority, based on the approved recommendation of a board of officers, unless the member waives the board or resigns, or requests discharge for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request for upgrade of his discharge should be reconsidered because he served honorably for 12 months in Vietnam; he had psychological issues that eventually led to his undesirable discharge; he previously requested upgrade of his discharge, but never received a reply from the Army; and he was recently diagnosed with PTSD.

2.  The applicant's initial DD Form 214 confirms his service in Vietnam and his honorable service for the period 15 June 1967 to 5 May 1969.

3.  The applicant's 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 warranted by the gravity of the offenses for which he was charged.  The evidence also shows that it was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  In further explanation of the original ABCMR Record of Proceedings with respect to the submission of an application to the ADRB, the evidence shows the applicant submitted an application for upgrade of his discharge in December 1981.  However, it appears he sent the application to his congressman.  The evidence also indicates that his congressman's office misfiled his application, discovered the error in August 1988, and sent it to the ADRB.  As a result, the application was not received by the ADRB within the 15-year statute of limitations and advised the congressman that the applicant could apply to the ABCMR.

5.  The evidence shows when the applicant applied to the ADRB in 1981, he acknowledged that his marriage was in trouble at the time he was on orders for reassignment to Europe.  The evidence of record also shows he went AWOL rather than report for overseas movement and he was convicted by a special court-martial  and was confined for 92 days.  Records further show the applicant went AWOL after he was released from confinement and charges were preferred against him, which led to his request for discharge for the good of the service.

6.  In his original request that was denied by the ABCMR, the applicant contended that his discharge was unjust because career Soldiers harassed him and forced him out of the Army.


7.  The applicant now contends that psychological issues led to his undesirable discharge and he provides evidence that he was recently diagnosed with PTSD.  However, the applicant does not explain how PTSD caused or justifies his recurrent and lengthy periods of AWOL.  His latest contention is not sufficiently mitigating to warrant relief in this case.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20090004232, dated 2 June 2009.



      _________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)                                         AR20100008813



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of