IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100021217 


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 absence without leave (AWOL) status be overturned
* His discharge under other than honorable conditions be upgraded to honorable
* Full retirement benefits 

2.  The applicant states:

* While he was AWOL he was suffering from severe Post Traumatic Stress Disorder (PTSD) and mental disorders due to his combat service in Vietnam
* He was not offered the proper help from the Army
* He was totally out of control
* He is now service connected for PTSD and receives treatment 

3.  The applicant provides:

* three DD Forms 214 (Report of Transfer or Discharge) for the periods ending 17 April 1965, 28 April 1966, 24 February 1972
* DD Form 214 (Report of Separation from Active Duty) for the period ending 22 February 1978
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 August 1983 

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 18 April 1963 and trained as an infantryman.  He remained on active duty through continuous reenlistments.  He served in Vietnam from 31 January 1968 through 13 January 1969 and from 
30 December 1970 through 29 November 1971.  He was promoted to sergeant first class on 14 July 1974.  His final enlistment contract shows he reenlisted on 23 February 1978 for a period of 3 years.  Records show he was AWOL from    14 November 1978 to 13 February 1979.      

3.  On 2 April 1980, he was convicted by a special court-martial of three specifications of being AWOL (from 27 February 1979 to 2 March 1979; 5 March 1979 to 7 March; and 7 March 1979 to 21 February 1980).  He was sentenced to be reduced to E-6 and to forfeit $300 pay per month for 6 months. 

4.  On 27 January 1982, with intent to remain away permanently, the applicant absented himself from his unit and remained so absent in desertion until he was apprehended on 13 June 1983.  On 20 June 1983, charges were preferred against the applicant for desertion.  Trial by general court-martial was recommended.   

5.  On 22 June 1983, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf. 

6.  The unit commander recommended approval of the applicant's request for discharge and the issuance of a discharge under other than honorable conditions.  He also indicated the applicant's reason for going AWOL was personal reasons. 

7.  On 22 July 1983, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  He was discharged under other than honorable conditions on 3 August 1983 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 17 years, 7 months, and 28 days of active service with 940 days of lost time.  

9.  There is no evidence of record which shows the applicant was diagnosed with PTSD or any mental condition prior to his discharge.

10.   There is no evidence of record which shows the applicant completed 
20 years of active duty. 

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for 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 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.

13.  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.
14.  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.

15.  Army Regulation 635-200, chapter 12 sets the policies and procedures for voluntary retirement of Soldiers because of length of service.  In pertinent part, it states that a Soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.

DISCUSSION AND CONCLUSIONS:

1.  He contends while he was AWOL he was suffering from severe PTSD and mental disorders.  However, no evidence shows he was having mental problems in 1982/1983 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.    

2.  His request that his AWOL status be overturned was noted.  However, since he is not contesting that he went AWOL, it's lost time unless it's excused as unavoidable.  He provides insufficient evidence to show he had PTSD or any mental disorder that caused him to not realize going AWOL was wrong.
 
3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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

5.  His record of service during his last enlistment included one special court-martial conviction and 940 days of lost time.  As a result, his record of service was not satisfactory and 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 a general or honorable discharge.

6.  Evidence of record shows the applicant completed 17 years, 7 months, and 28 days of creditable active service when he was discharged.  No evidence shows he completed 20 years of active duty. Therefore, there is no basis for granting his request for full retirement benefits (a length of service retirement).   

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)                                         AR20100021217





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ABCMR Record of Proceedings (cont)                                         AR20100021217



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