IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013121 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  He states he served honorably during his first term of service and reenlisted while in Korea to become a combat medic.  He offers he treated hundreds of wounded combat Soldiers and evacuated thousands of dead Soldiers while serving as a combat medic.  He describes many traumatic events that occurred during his tour in Vietnam and maintains that he could have been killed or wounded.  The applicant states when he returned to Fort Knox, Kentucky, he was having severe problems with his nerves, nightmares, flashbacks, depression, and was drinking heavily.  He also adds he was having family problems due to his wife being unfaithful while he was in Vietnam and she continued to be unfaithful upon his return.  He offers that this situation contributed to him going absent without leave (AWOL).

3.  He states he served one complete tour and was discharged honorably and was allowed to reenlist.  He adds he was promoted to staff sergeant (SSG)/E6 and was awarded the Combat Medical Badge and numerous distinguished awards.  He maintains he was diagnosed with Post Traumatic Stress Disorder (PTSD), a condition he believes he suffered from immediately after his return from Vietnam, but the condition was undiagnosed and untreated.  He offers he was having severe difficulties adjusting to civilian society after months of intense combat service.  He says he is now receiving treatment for PTSD.  

4.  He provides a self-authored statement.
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’s record shows he originally enlisted in the Regular Army on 
9 January 1963 and he was honorably discharged on 21 April 1964 after completing 1 year, 3 months, and 13 days of service.  On 22 April 1964, the applicant reenlisted.  The highest grade he obtained was SSG. 

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the following countries during the following periods:

* Korea, 31 May 1963 to 1 May 1964
* Germany, 19 April 1966 to 28 February 1968
* Vietnam, 23 March 1968 to 19 March 1969

4.  On 13 January 1968, nonjudicial punishment was imposed against the applicant for failure to appear at his appointed place of duty at the prescribed time.

5.  Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, Special Court-Martial (SPCM) Order Number 48, dated 19 March 1966 shows the applicant was found guilty of being AWOL on two separate occasions:  from 24 October 1965 to 24 November 1965 and from 5 December 1965 to 22 January 1966.  

6.  On 26 November 1973, charges were preferred against him for being AWOL on four separate occasions:  from 19 August 1969 to 17 September 1969; from 
4 October 1969 to 23 October 1969; from 12 November 1969 to 20 November 1969; and from 30 November 1969 to 6 November 1973.



7.  On 21 November 1973, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.

8.  He signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his behalf, but a copy of his statement was not contained in his records.  

9.  On 8 January 1974, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.

10.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Bronze Star Medal, Republic of Vietnam Campaign Medal with/60 device, Army Commendation Medal, Combat Medical Badge, Sharpshooter Marksmanship Qualification Badge (M-14), Vietnam Service Medal with five bronze service stars, and Marksman Marksmanship Qualification Badge (Automatic Rifle).

11.  His DD Form 214 shows that on 16 January 1974 he was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 with a character of service of under other than honorable conditions.  The applicant had completed a total of 6 years,         5 months, and 16 days of creditable service and he had a total of 372 days of time lost under Title 10 USC 972 prior to normal expiration term of service (ETS) and 1,294 days lost after ETS.  

12.  His record is void of any evidence and he has not provided any evidence showing he was diagnosed with any type of medical condition at the time of his separation.  There is also no evidence supporting his claim that he was experiencing problems with his nerves, nightmares, flashbacks, depression, or alcoholism at the time or that he sought assistance from his chain of command to help him cope with any of these issues.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 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.

15.  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.

16.  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 argues, in effect, that his discharge should be upgraded because he served honorably during his first enlistment and his indiscipline was based on being diagnosed with PTSD and his family problems, both of which either resulted from or occurred during his tour in Vietnam .  There is no evidence and the applicant has not provided any evidence to show he had PTSD, he was experiencing family problems, and/or that he sought counseling to correct his problems.

2.  In addition, the evidence of record shows that his misconduct started before he arrived in Vietnam.

3.  The available evidence confirms all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

4.  The applicant's entire record of service was considered and his awards of the Bronze Star Medal, Combat Medical Badge, and Army Commendation Medal were noted.  However, his record of service includes one Article 15, conviction by an SPCM, and over 4 years of lost time due to AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, there is no basis to upgrade his 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)                                         AR20100013121





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ABCMR Record of Proceedings (cont)                                         AR20100013121



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