IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019131 


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, an upgrade of his undesirable discharge based on his medical disorder.

2.  The applicant states he was ridden with guilt and anguish during the course of his military service.  This was further exacerbated by the death of his brother during his second enlistment:

   a.  He sought help for his symptoms while serving in Vietnam.  He was hospitalized from 1970-1971 for mental anguish due to his tour of duty in Vietnam.

   b.  He had no idea what post-traumatic stress disorder (PTSD) was until recently.  He has lived with his shame in silence.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs (VA), Compensation and Pension Examination, dated 1 March 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.  The applicant enlisted in the Regular Army (RA) on 24 April 1967.  Upon completion of training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 11 June 1969, the applicant reenlisted in the RA for a period of 6 years. There is no DD Form 214 for the active duty period from 24 April 1967 through 10 June 1969 in the available record.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service) he served in:
   
* Vietnam from 1 April through 5 October 1968
* Korea from 6 October 1968 through 18 April 1969
* Germany from 31 December 1969 through 26 December 1971

	b.  item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration of Term of Service]) shows he was absent without leave (AWOL) for 7 days from 28 July through 3 August 1969.

5.  On 10 March 1971, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his place of duty from 1900 hours, 5 March to 0800 hours, 6 March 1971 and from 1400 hours, 9 March to 0800 hours, 10 March 1971.  His punishment consisted of a reduction to private first class (E-3) (suspended for 60 days) and a forfeiture of $40.00 pay for 1 month.

6.  On 22 April 1971, the applicant's company commander preferred court-martial charges against him for:

* willful disobedience of a commissioned officer
* missing movement on 29 March 1971
* being AWOL from 30 March to 1 April 1971 and from 8 April to
14 April 1971
* possession of marijuana
* possession of Lysergic Acid Diethylamide (LSD)
7.  On 12 July 1971, the applicant consulted with legal counsel and voluntarily requested a 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge:

   a.  He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge.
   
   b.  The applicant indicated that statements in his own behalf were not submitted with his request.

8.  On 19 July 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed that the applicant be issued an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 shows he entered active duty this period on
11 June 1969 and he was discharged on 28 July 1971 in accordance with Army Regulation 635-200, chapter 10, under conditions other than honorable with an Undesirable Discharge Certificate.  At the time he had completed 2 years,
1 month, and 9 days of net active service this period; 2 years, 1 month, and 
17 days of other service; and 4 years, 2 months, and 26 days of total active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for most of the applicant's offenses.

12.  In support of his application, the applicant provides a copy of an 8-page VA, Compensation and Pension Examination that shows the applicant was examined by a board-certified psychiatrist on 1 March 2010:

   a.  The psychiatrist provides an account of the applicant's combat experiences in Vietnam, as described by the applicant.  The applicant:
       (1)  indicated his younger brother was killed in Vietnam while driving a vehicle that hit a landmine on 4 July 1968;

       (2)  described an incident that occurred when he was ordered to clean a boat that contained the blood of another Soldier who had been mortally wounded;

       (3)  admitted to cutting the ears off dead enemy soldiers on at least nine different occasions, he then began experiencing nightmares about the dead men, and eventually decided to burn the ears to get rid of his guilt; and

       (4)  he was transferred to Korea after becoming a conscientious objector.

   b.  The psychiatrist diagnosed the applicant, in pertinent part, as follows:

       (1)  AXIS I:  "PTSD, combat-related, severe with ongoing psychic numbing."

       (2)  AXIS III:  "Includes history of back injury while in Vietnam.  [The applicant] had no combat wound, but apparently he was treated for a month at Long Binh Hospital because of the problem with his back…[he then returned to his unit]."

13.  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, provides 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

	b.  Chapter 3, paragraph 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.  Chapter 3, paragraph 7b, provides that an under honorable conditions discharge 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 contends that his discharge should be upgraded based on his medical disorder.

2.  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 voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service is appropriate and equitable.

3.  The evidence of record shows the applicant's commander preferred five separate charges against him under various Articles of the UCMJ.  The evidence of record also shows the applicant voluntarily requested discharge in lieu of court-martial and he completed only about 2 years and 1 month of his 6-year enlistment commitment.  Thus, the evidence of record shows that the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge or general discharge.

4.  The applicant's contention and the medical record he provides were carefully considered.  The evidence shows the applicant was diagnosed with PTSD by the VA in March 2010.  However, this evidence is insufficient as a basis for granting the 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 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)                                         AR20100019131



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ABCMR Record of Proceedings (cont)                                         AR20100019131



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