IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019463 


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 undesirable discharge (UD) to a general discharge.

2.  He states his misconduct was due to untreated post traumatic stress disorder (PTSD) from his service in Vietnam.  He drank more than he should have and he had "no regard for authority, etc."  He never received counseling for the disorder. After his military service, he was employed at the same job for 34 years.  

3.  He provides his:

* DA Form 20 (Enlisted Qualification Record), page 3
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 22 February 1973

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) 12 October 1962 for 3 years in the rank/grade of private (PV1)/E-1.  He completed training and he was awarded military occupational specialty 63A (Maintenance Apprentice).  He served in Korea from 9 July 1963 through 24 July 1964.

3.  He was punished under Article 15, Uniform Code of Military Justice (UCMJ) on 27 February 1965 for sleeping on guard post.

4.  He was honorably discharged on 11 October 1965 for the purpose of immediate reenlistment.  He reenlisted in the RA on 12 October 1965 for 6 years.  He served in Vietnam from 23 July 1966 through 21 July 1967.

5.  He was reported absent without leave (AWOL) on 13 September 1968 and he returned to military control on 15 September 1968.

6.  He was punished under Article 15, UCMJ, for violating a lawful general regulation on 22 May 1969.

7.  He was honorably discharged on 23 April 1970, for the purpose of immediate reenlistment.  He reenlisted in the RA on 24 April 1970 for 3 years.  He served in Germany from 7 March 1970 through 2 April 1973.

8.  He was reported AWOL on 2 May 1971 and dropped from the rolls of his unit as a deserter on 31 May 1971.  He was apprehended by civilian authorities and he was returned to military control on 25 January 1973. 

9.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  His DD Form 214 shows he was discharged in the rank/grade of PV1/E-1 on 22 February 1973 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, and issued a UD Certificate.  He was credited with 1 year and 22 days of net service during this period with 642 days of time lost.

10.  There is no evidence of record and the applicant did not provide any evidence that shows he was diagnosed with PTSD or any other mental condition during or after his period of service in Vietnam or that he requested assistance through his chain of command for any problems he was having that prevented him for completing his term of enlistment.  
11.  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.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, states a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was honorably discharged from active duty on 23 April 1970 for the purpose of reenlisting a second time.  He reenlisted on 24 April 1970.  He was reported AWOL on 2 May 1971 and dropped from the rolls on 31 May 1971.  He was apprehended by civilian authorities and returned to military control on 25 January 1973. 

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100019463



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ABCMR Record of Proceedings (cont)                                         AR20100019463



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