BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100015666 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he suffers from post traumatic stress disorder (PTSD) and he is being compensated for it through the Department of Veterans Affairs (VA).  He believes his service-connected PTSD led to his eventual discharge, because since being discharged he has led a good, honest life as evidenced by the supporting documents attached to his request. 

3.  The applicant provides a self-authored letter and two letters of support.

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 enlisted in the Regular Army for a period of 2 years on 13 May 1970.  Records show the applicant was 19 years of age at the time of enlistment. Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). The highest rank the applicant attained was specialist/pay grade E-4.  

3.  On 21 January 1971, the applicant was discharged for immediate reenlistment.  On 22 January 1971, the applicant reenlisted for 3 years for present duty assignment while in the Republic of Vietnam.

4.  The applicant was absent without leave (AWOL) from 24 August 1972 to 
1 September 1981.

5.  On 8 September 1981, court-martial charges were preferred against the applicant for the above period of AWOL.

6.  On 11 September 1981, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  

7.  On 11 September 1981, following consultation with legal counsel the applicant 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.  He acknowledged he was making the request of his own free will without being subjected to any coercion whatsoever by any person.  In his request for discharge the applicant acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

8.  As part of the discharge process, he submitted a statement on his own behalf wherein he stated he was gone 9 years and he could not adjust to Army life. 


9.  DA Form 3822-R (Report of Mental Status Evaluation), dated 11 September 1981, shows the applicant suffered from no mental illness.  The applicant declined a medical examination, as part of the separation process.  His record is void of any evidence and he has not provided any evidence of any specific medical condition.

10.  The applicant’s immediate and intermediate commanders recommended approval of the applicant’s request with the issuance of an under other than honorable conditions discharge. 

11.  On 30 September 1981, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed that he be reduced to private (E-1) and issued an under other than honorable conditions discharge. 

12.  Accordingly, the applicant was discharged on 20 October 1981.  The 
DD Form 214 he was issued shows he completed 1 year, 8 months, and 12 days of creditable active military service.  DD Form 214 also shows that the applicant had lost time from 16 July to 25 July 1972 and 24 August 1972 to 21 January 1974 and he had lost time after his normal expiration term of service date from 22 January 1974 to 31 August 1981. 

13.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

14.  The Manual for Courts-Martial Table of Maximum Punishments set forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for absence without leave.

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

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

   c.  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

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because PTSD led to his discharge was carefully considered.  However, the available evidence does not support this claim. 

2.  The applicant’s record is void of any evidence and he has not provided any evidence that PTSD or any or any other medical condition affected his ability to serve and led to his discharge.  

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






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)                                         AR20100015666



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015666



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1