IN THE CASE OF:	  

		BOARD DATE:	    8 February 2011

		DOCKET NUMBER:  AR20100019817 


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 his undesirable discharge be upgraded for entitlement to Department of Veterans Affairs (VA) benefits.

2.  The applicant states he was in the process of returning stateside from Germany when his request for emergency leave (parents were getting divorced) was denied.  Upon his arrival in the states he chose to go home rather than to his assigned duty station.  His siblings were younger and he felt obligated to help his parents and possibly stop the divorce process.  He was reported as being absent without leave (AWOL) from 18 July 1970 to 3 August 1970.

3.  The applicant states following his return from Vietnam on 16 July 1971 he was spit on and called a "baby killer."  He does not recall being AWOL as indicated on his DD Form 214 (Report of Transfer or Discharge).  Based on medical treatment he is now receiving, he contends he was suffering from Post Traumatic Stress Disorder (PTSD) from his service in Vietnam.  Due to PTSD, he left (went AWOL) Fort Ord, CA because he was upset with the Army because they evacuated him from Vietnam to Japan for no apparent reason otherwise he would have ETSd [expiration term of service].  His hopes for leaving the Army were not apparent and he chose to go back home without authorization.

4.  The applicant provides:

* DD Form 214
* DD Form 215 (Correction to DD Form 214) 
* Service personnel records
* Letter from his spouse
* VA medical records

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 on 30 April 1969 for a period of 
3 years.  He completed his training and was awarded military occupational specialty (MOS) 12A (pioneer) and later MOS 12B (combat engineer).  He served in Germany from 28 September 1969 to 9 June 1970.    

3.  On 9 August 1970, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 18 July 1970 to 3 August 1970.

4.  He arrived in Vietnam on 15 August 1970.

5.  On 7 December 1970, while in Vietnam, NJP was imposed against the applicant for failing to obey a lawful general regulation.

6.  His DA Form 20 (Enlisted Qualification Record) shows on 15 May 1971 he was evacuated from Vietnam to Camp Zama, Japan for medical treatment.  He was transferred to Fort Ord, CA on 15 July 1971. 

7.  On 6 August 1971, NJP was imposed against the applicant for being AWOL from 16 July 1971 to 3 August 1971.

8.  On 1 October 1971, he went AWOL and returned to military control on 
8 December 1971.  He went AWOL again on 10 January 1972 and returned to military control on 5 May 1972.  On 24 May 1972, charges were preferred against the applicant for the AWOL periods.  


9.  On 31 May 1972, after consulting with counsel, the applicant submitted a request for 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 indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he thought the Army was really messed up when he came back from Vietnam
* he couldn't make it in the Army but he could make it in civilian life
* he would continue to go AWOL until he got out of the service
* he didn't care what discharge he got
* the discharge he got would not affect the type of work he did and loved (ranch work)    
 
10.  On 26 June 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

11.  He was discharged with an undesirable discharge on 10 July 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 2 years, 7 months, and 
5 days of creditable active service with 216 days of time lost.

12.  No evidence shows he was diagnosed with PTSD or any mental condition prior to his discharge. 

13.  A DD Form 215, dated 30 October 1975, added the entry "DD 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No. 4313" to item 30 (Remarks) of his DD Form 214.

14.  The available records contain a letter, dated 20 November 1975, which states the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313 (PP 4313) of 16 September 1974.

15.  On 6 September 1986, the Army Discharge Review Board denied his request for a discharge upgrade.  
16.  In support of his claim, the applicant provided VA medical records which show he was diagnosed with PTSD on 25 January 2010.

17.  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 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 an individual who was discharged for the good of the Service.

18.  PP 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals:  (1) fugitives from justice who were draft evaders; (2) members of the Armed Forces who were in an unauthorized absence status; and (3) prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of articles 85 (desertion), 86 (absent without leave), or 87 (missing movement) of the Uniform Code of Military Justice.  The third group could apply to a Presidential Clemency Board, which was made up of individuals appointed by the President who would establish a period of alternate service of not more than 24 months that the individual should perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.

19.  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.

20.  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.  A discharge is not changed for the purpose of obtaining VA benefits.

2.  The applicant contends he went AWOL due to PTSD.  However, no evidence shows he was having mental problems in 1971/1972 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.    

3.  Evidence shows he was discharged with an undesirable discharge on 10 July 1972.  Evidence shows he was awarded a clemency discharge in 1975 pursuant to PP 4313 of 16 September 1974.  The governing Proclamation states the clemency discharge did not affect the underlying discharge.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  His record of service included three NJP actions (one received prior to his arrival in Vietnam) and 216 days of time lost due to being AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20100019817



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ABCMR Record of Proceedings (cont)                                         AR20100019817



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