IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022238 


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 discharge under other than honorable conditions (undesirable discharge) to a general discharge under honorable conditions.

2.  He states he was suffering from post-traumatic stress disorder (PTSD) while he was on active duty due to finding members of his squad executed.  He was awarded six Purple Hearts and because of his PTSD he could no longer handle war conditions.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and four 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's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his Army records were lost or destroyed in that fire.  However, there was sufficient documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  His available DD Form 214 shows he reenlisted in the Regular Army in pay grade E-5 on 24 March 1971 for 6 years.  He previously completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman) on 11 October 1969.  He served in Vietnam from 22 December 1969 through 21 December 1970.

4.  He was reduced to pay grade E-1 on 13 November 1971.

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, he submitted a DD Form 214 which shows he was discharged from active duty in pay grade E-1 on 26 November 1971 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.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  He was credited with completion of 6 months and 20 days of net active service during this period and 1 year, 9 months, and 25 days other service.  He was also had lost time from 8 September through 6 October 1969, 22 July 1971, and from 21 September through 3 October 1971.

6.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:  Vietnam Service Medal, Vietnam Campaign Medal with Device (1960), Purple Heart, Combat Infantryman Badge, Air Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M-16 and 
M-14), and Marksman Marksmanship Qualification Badge with Machine Gun Bar (M-60).

7.  He provided four support letters wherein each individual stated, in effect, the applicant began experiencing problems after coming back from Vietnam, such as forgetting things, suffering from depression, maybe PSTD, and holding a regular job.

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

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10 states 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 at any time after charges have been preferred.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.  An undesirable discharge was normally considered appropriate at the time.

10.  Army Regulation 635-200, paragraph 3-7b, states 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.  The applicant contends his discharge should be upgraded to a general discharge because he was suffering from PTSD.

2.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 26 November 1971 under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, requests discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, notwithstanding his single award of the Purple Heart and the Air Medal, it is presumed his discharge accurately reflects his overall record of service during this period of service.  In addition, it appears his misconduct started before he ever arrived in Vietnam, with lost time in September/October 1969.

4.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100022238



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ABCMR Record of Proceedings (cont)                                         AR20100022238



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