BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025262


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 undesirable discharge to a general under honorable conditions discharge.

2.  The applicant states, in effect, he was not given the proper evaluations and he was not given the assistance needed to confront his mental conditions.  He states he performed honorably in service to his country and its defense, and he endured the life of a post-traumatic stress disorder (PTSD) victim.

3.  The applicant provides:

* a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 8 August 1966
* his DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 30 April 1968
* his DA Form 20 (Enlisted Qualification Record)
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 13 March 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) on 24 December 1965 for a period of 3 years.  He completed training and he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  On 29 April 1968, after completing 2 years, 4 months, and 6 days of net active service, he was honorably discharged for the purpose of immediate reenlistment.  On 30 April 1968, he reenlisted in the RA for a period of 4 years.

3.  His record shows he served in the Republic of Vietnam from 22 March 1970 to 6 April 1971.  During his service in Vietnam he was assigned to Headquarters, Headquarters and Service Battery, 4th Battalion (Aerial Artillery), 77th Artillery (Airmobile), 101st Airborne Division (Airmobile).

4.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on multiple occasions for the offenses indicated:

* on 13 April 1966, for absenting himself, without proper authority, from his unit on 8 April 1966
* on 8 August 1966, for absenting himself, without proper authority, from his appointed place of duty on 30 July 1966
* on 3 February 1967, for absenting himself, without proper authority, from his unit on 21 January 1967
* on 17 March 1969, for dereliction in the performance of duty on 17 March 1969
* on 3 June 1969, for absenting himself, without proper authority, from his unit on 29 May 1969
* on 21 November 1969, for absenting himself, without proper authority, from his appointed place of duty on 1 November 1969, and for failing to repair on 7 November 1969 
* on 21 August 1970, for absenting himself, without proper authority, from his appointed place of duty on 20 August 1970
* on 28 September 1971, for violating a lawful general regulation on
19 August 1971
* 
on 3 December 1971, for absenting himself, without proper authority, from his appointed place of duty on 3 and 4 November 1971

5.  At a Special Court-Martial at Wiesbaden, Germany, he pled guilty to Charge I and its specification, and not guilty to all specifications of Charge II.  He was charged with:

* 1 specification of Charge I, operating a privately-owned vehicle with a suspended U.S. Army Europe (USAEUR) drivers license
* 7 specifications of Charge II, absenting himself, without proper authority, from his appointed place of duty

6.  On 27 April 1972, the court-martial found him guilty of all specifications and of all charges and specifications, with amendment of specification 1 of Charge II.  The court-martial sentenced him to a reduction to private (PV1)/E-1 and confinement at hard labor for 3 months (30 days suspended).

7.  At a Summary Court-Martial at Crailsheim, Germany, he pled guilty to
2 specifications of Charge I and not guilty to a 1 specification of Charge I, and guilty to Charge II and its specification.  He was charged with:

* 3 specifications of Charge I, absenting himself, without proper authority, from his appointed place of duty 
* 1 specification of Charge II, failing to follow a lawful order from a commissioned officer

8.  On 21 June 1972, the court-martial found him guilty of the 1 specification of Charge I, and not guilty of Charge II and its specification.  The court-martial sentenced him to forfeiture of $190.00 per month for one month and confinement at hard labor for 30 days (suspended).

9.  Summary Court-Martial Order Number 13, issued by Headquarters,
1st Battalion, 51st Infantry Regiment, 1st Armored Division, dated 7 July 1972, vacated the suspension of his confinement at hard labor for 30 days, and ordered its execution at the U.S. Army Confinement Facility, Furth, Germany.

10.  Summary Court-Martial Order Number 14, issued by the same headquarters, dated 17 July 1972, remitted the unexecuted portion of his confinement at hard labor.

11.  Summary Court-Martial Order Number 20, issued by Headquarters,
1st Armored Division, dated 11 August 1972, set aside that portion of his sentence in excess of his forfeiture of $190.00.

12.  On 20 July 1972, he was reported as absent without leave (AWOL) from his unit, Company C, 1st Battalion, 51st Infantry Regiment, 1st Armored Division.  He remained AWOL until he was returned to military control on 24 January 1973.

13.  His discharge packet is not available for review.  However, his DD Form 214 for the period ending 13 March 1973 shows he was administratively discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, separation program number (SPN) 246, discharge for the good of the service - in lieu of trial by court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed 3 years, 3 months, and 2 days of net service during this period, with 241 days of time lost due to being AWOL and in confinement.

14.  There is no documentation in the available record, and he has not provided any documentation, to substantiate either a diagnosis of PTSD or other mental conditions.

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

16.  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.

17.  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.  The applicant's request for discharge upgrade was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's record indicates he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with the applicant’s overall record of military service.

4.  The applicant's contention that he was not properly evaluated for PTSD or other mental conditions is noted; however, there is no evidence in the available records, or any evidence provided by him, that supports he suffered from PTSD or other mental conditions.

5.  Based on his record of indiscipline, including multiple instances of NJP,
2 court-martial convictions, and 241 days of time lost due to being AWOL and in confinement, misconduct that started long before he arrived in Vietnam, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

6.  In view of the foregoing there is no 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100025262



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