IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026173 


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 to honorable or general.

2.  The applicant states:

* after returning from his second tour in Vietnam he experienced psychological and emotional problems
* it was suggested his problems were symptoms of post-traumatic stress disorder (PTSD)
* he was absent without leave (AWOL) due to marital problems and remained away for 3 1/2 years
* he has lived honorably and responsibly since his discharge
* he had several honorable discharges before being AWOL and only hopes they count for something
* he is almost 70 years of age and is not in the best of health

3.  The applicant provides two DD Forms 214 (Report of Transfer or Discharge) for the periods ending 24 April 1969 and 9 March 1972 and a DD Form 214 (Report of Separation from Active Duty) for the period ending 17 February 1976.

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.  Having prior service in the Army National Guard, he enlisted in the Regular Army on 25 January 1962 for a period of 6 years.  He served as an administrative specialist in Vietnam from 8 July 1966 to 7 January 1968.  On 24 April 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 25 April 1969 for a period of 3 years.  He attained the rank of staff sergeant on 11 June 1969.  He served in Vietnam from 8 July 1969 to 8 July 1970.  On 9 March 1972, he was honorably discharged for immediate reenlistment.  He reenlisted on 10 March 1972 for a period of 3 years.

3.  He was AWOL on 18 July 1972 and returned to military control on 2 August 1972.  On 7 August 1972 with intent to remain away permanently, the applicant absented himself from his unit and remained so absent in desertion until 26 January 1976.  On 28 January 1976, charges were preferred against the applicant for desertion and the AWOL period.

4.  On 30 January 1976 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 he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

5.  On 11 February 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

6.  He was separated with an undesirable discharge on 17 February 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 11 years, 2 months, and 5 days of total active service with about 1770 days of lost time.

7.  No evidence shows he was diagnosed with PTSD or any mental condition prior to his discharge on 17 February 1976.

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

9.  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, the 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 to an individual who was discharged for the good of the service.

10.  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.

11.  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.  He contends after returning from his second tour in Vietnam he experienced psychological and emotional problems which might have been symptoms of PTSD.  However, no evidence shows he was having mental problems from July 1970 to August 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.

2.  He contends he was AWOL due to marital problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to being AWOL.

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  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.

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

6.  His prior honorable discharges were carefully considered.  However, his record of service during his last enlistment included serious offenses (AWOL and desertion) for which court-martial charges were preferred and 1649 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 an honorable discharge or a general 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 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)                                         AR20100026173



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ABCMR Record of Proceedings (cont)                                         AR20100026173



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