IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012647 


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 be upgraded to an honorable discharge.

2.  The applicant states he did not realize he was suffering from post traumatic stress disorder (PTSD), which is now being corrected.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from the Department of Veterans Affairs Medical Center dated 3 February 2010.

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 10 November 1966, the applicant enlisted in the Regular Army (RA) for 3 years.  He completed training as an infantry indirect fire crewman.

3.  The applicant had nonjudicial punishment (NJP) imposed against him on 13 January 1967 for being absent without leave (AWOL) from 8 to on or about 12 January 1967. 

4.  The applicant had NJP imposed against him on 31 January 1967 for being AWOL from 28 to on or about 30 January 1967 and for exceeding the limits of his pass.

5.  He arrived in Vietnam on 1 October 1967.  He returned to the U.S. on           11 December 1968.

6.  On 18 August 1970, he was convicted by a general court-martial of being AWOL from 20 January 1969 until 31 December 1969 and from 1 January 1970 until 9 June 1970.  His sentence included:

* a bad conduct discharge
* confinement at hard labor for 6 months
* reduction to the pay grade of E-1

7.  The Staff Judge Advocate recommended that so much of the sentence as provided for the bad conduct discharge be suspended for 6 months.  

8.  On 4 September 1970, the convening authority approved the sentence and he ordered the sentence executed.  However, that portion of the sentence adjudging a bad conduct discharge was suspended until 28 February 1971 at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

9.  Effective 21 October 1970, the Adjutant, U.S. Army Correctional Training Facility, Fort Riley, Kansas, remitted the unexecuted portion of the approved sentence to a bad conduct discharge and confinement at hard labor for 6 months.

10.  On 21 October 1970, the applicant was promoted to the pay grade of E-2.

11.  The United States Army Court of Military Review of Military Review affirmed the findings as approved on 19 November 1970.  



12.  The applicant's conduct and efficient ratings were "excellent," effective 30 November 1970.  He was promoted to the pay grade of E-3 on 2 February 1971.  He continued to serve in the Army until he was released from active duty (REFRAD) and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 20 August 1971, at the expiration of his term of service.  

13.  His DD Form 214 shows:

* he completed 3 years of total active service
* he was issued a separation program number (SPN) of 201 (Expiration Term of Service)
* he was issued reentry eligibility (RE) codes 3A and 3B
* he was issued a General Discharge Certificate
* he was separated on temporary records and Soldier's Affidavit

14.  Item 42 (Remarks) on his DA Form 20 (Enlisted Qualification Record) contains the statement "Character of service to be issued upon separation will be honorable, RE 1."

15.  The applicant submits a letter from a psychologist stating that he has been diagnosed with and is being treated for PTSD.  

16.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, provides that the DA Form 20 with insert sheets (DA Form 20A and 20B), when applicable, is the basic document for maintaining current data necessary to manage enlisted personnel and to document their military career.  Only authorized entries will be recorded therein.  Eligibility for further service will be recorded in item 42 of DA Form 20.

17.  Army Regulation 635-200 (Personnel Separations), section III, then in effect, provides factors governing issuance of Honorable, General and Undesirable Discharge Certificates.  It states, in pertinent part, regardless of previous record, a former prisoner who was restored to duty to complete an existing enlistment or obligation to serve will be furnished the type of discharge certificate to which his service subsequent to restoration entitles him.

18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 

of this regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes.  

19.  Army Regulation 601-210, chapter 3-10, also provides that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE codes would be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was suffering from PTSD while he was in the Army.  His contentions and the letter he submitted from his psychologist has been considered.

2.  Based on the evidence contained in his official record and the applicable regulation, it appears that the applicant should have been issued a fully honorable discharge at the time of his REFRAD.  His records show that after his court-martial conviction he continued to serve in the Army honorably.  He was promoted and he obtained "excellent" conduct and efficient ratings.

3.  After the applicant completed his sentence, he completed his service obligation and was allowed to serve until the expiration of his term of service.  Additionally, the entries in item 40 on his DA Form 20 clearly show that the intent was for him to be issued an Honorable Discharge Certificate and an RE-1 code upon his separation from the Army.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

__X_____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* voiding his DD Form 214 dated 20 August 1971
* issuing him a new DD Form 214 for the period 10 November 1966 through 20 August 1971, showing his character of service as honorable and his RE code as RE-1
* issuing him an Honorable Discharge Certificate for the same period of service




      __________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)                                         AR20100012647



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ABCMR Record of Proceedings (cont)                                         AR20100012647



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