BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100015023 


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 that his undesirable discharge under other than honorable conditions be upgraded to a general under honorable conditions discharge.

2.  He states he was discharged under other than honorable conditions because he suffered from Post Traumatic Stress Disorder (PTSD) due to events which occurred on his first night at a replacement company in the Republic of Vietnam (RVN) when a rocket exploded in a tent next to his and killed numerous Soldiers.
He attests he was unable to get any substantial sleep for the next 3 months which made him unable to do his job.  He further attests his blood pressure was high, he suffered from hallucinations, and since he was an Infantryman, nobody wanted to work with him.

3.  He states he is currently suffering from conditions related to exposure to Agent Orange and other problems and concludes that he would not have been given an other than honorable discharge if he had been allowed to see a doctor.  He adds that he served in the Merchant Marines from 1972 to 2008 with over 30 years of sea time and he has proudly delivered supplies to the troops in each of the numerous conflicts in which his country has been involved during that time.

4.  Although he refers to a Department of Veterans Affairs case number, he provides no additional evidence in support of his request.



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.  His record shows enlisted in the Regular Army on 14 July 1969 and upon completion of initial entry training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.  He served in Germany from 4 January 1970 through 7 October 1970 and in the RVN from 8 December 1970 through 25 March 1971.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for committing the following offenses in violation of articles of the UCMJ:

* failing to go at the prescribed time to his appointed place of duty
* departing his unit in an absent without leave (AWOL) status from 15 November 1970 through 27 November 1970
* being drunk on duty
* refusing to work

4.  On 8 January 1971, he underwent a psychological and psychiatric evaluation at a Mental Hygiene Clinic one month following his arrival in the RVN as the result of a command referral.

* The commander stated the applicant:

* had poor efficiency and conduct ratings
* displayed a lack of job interest
* displayed a contempt for authority
* was a known drug user
* would accept a discharge of any kind
* stated he could not get along with people

* During the course of three examinations (including two previous visits) the applicant stated:

* he had a history of drug use and desired assistance with his problem
* he requested reassignment from Germany to the RVN in order to get drugs cheaper
* he could not perform his duty because he feared he might start using drugs again
* he could not continue in service because he could not get along with those in authority and was fearful he may hurt himself through excessive drug use or suicide attempt
* "If they keep bothering me, you never know what you might do"

* The examining psychiatrist and psychologist:

* noted he had been seen on three occasions since arriving in the RVN and previously disclosed a history of drug use
* opined his frequent visits to the clinic were a manipulative effort on his part to avoid his duty in the RVN
* found no evidence of psychiatric disease, psychosis, psychoneurosis, or significant depression
* cleared him for administrative action deemed appropriate by his command

5.  A DD Form 458 (Charge Sheet), dated 24 February 1971, shows he was charged with one specification of violating Article 90 of the UCMJ by willfully disobeying a lawful command from a superior commissioned officer to go to the field with his unit.  

6.  A DA Form 2823 (Witness Statement), dated 25 February 1971, shows that on 23 February 1971 Major S_______ (the applicant's Battalion Executive Officer (XO)) informed him it was his duty to go to the field with his unit and he stated he was not going to the field.  The XO then informed him he had two choices:  either go to the field or be placed in pre-trial confinement.  He again stated he was not going to the field and he would rather go to jail.  The XO then informed him he was disobeying a direct order and he would be placed in pre-trial confinement pending trial by court-martial.

7.  He rendered the following statement:

"I cannot get along with the Army because of my drug problem.  I get flashbacks and I am not going to endanger anyone's life because of it.  I have a psychiatrist's statement saying that I should be discharged as deemed appropriate by the command.  I was told to go to the field, but I do not believe in this war at all."

8.  On 26 February 1971, he consulted with legal counsel and 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  His chain of command recommended approval of his request and recommended that he be issued an undesirable discharge.

10.  On 20 March 1971, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate).

11.  On 25 March 1971, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued a DD Form 258A.  His service was characterized as "Under Other than Honorable Conditions."  He completed a total of 1 year, 7 months and 29 days of creditable active military service with 12 days of lost time.

12.  His record is void of any evidence and he has not provided any evidence showing that he was ever in the vicinity of an exploding rocket which resulted in the loss of numerous Soldiers or that he experienced any other traumatic event while serving in the Army.


13.  On 24 May 1979, the President of the Military Review Boards Agency informed him that the Army Discharge Review Board reviewed his case and determined he was properly and equitably discharged and that his request for a change in the character and/or reason of his discharge was denied.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.

15.  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's contention that his undesirable discharge under other than honorable conditions should be upgraded to a general under honorable conditions discharge due to the fact he was suffering from PTSD was carefully considered and determined to be without merit.

2.  His record is void of any evidence and he has not provided any evidence showing that he was ever in the vicinity of an exploding rocket which resulted in the loss of numerous Soldiers or that he experienced any other traumatic event while serving in the Army.  

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on four occasions for a variety of offenses that include drug use prior to his arriving in Vietnam.

4.  His record also shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.


5.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, he is not entitled to an upgrade of 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)                                         AR20100015023





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ABCMR Record of Proceedings (cont)                                         AR20100015023



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