IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100028104 


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 bad conduct discharge to honorable or general.

2.  The applicant states he completed two tours of duty in Vietnam.  While in Vietnam, his mother died and he returned home for the funeral.  Upon his return to Vietnam, he started drinking heavily in an attempt to self-medicate for his post-traumatic stress disorder (PTSD).  He can't even remember several years of his service due to excessive drinking.  However, he has now been sober for 30 years and has never had a criminal record.

3.  The applicant provides:

* 2010 psychological assessment report
* 2007 Intake Assessment
* 2007 Detailed Assessment of Post-traumatic Stress Interpretive Report
* 2009 treatment plan

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 records show he was inducted into the Army of the United States on 10 August 1965 and held military occupational specialty 11B (Light Weapons Infantryman).

3.  On 5 December 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to secure a military vehicle.

4.  He was honorably released from active duty on 13 August 1967 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.

5.  He enlisted in the Regular Army for 3 years on 10 April 1968.  He appears to have served in Vietnam from May to December 1968.  He was evacuated from Vietnam to Fort Sam Houston, TX, in December 1968 after an accidental weapon discharge on 7 November 1968.

6.  On 26 May 1969 at Fort Hood, TX, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from his Fort Hood unit from 25 March to 7 May 1969.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $168.00 pay per month for 6 months.  The convening authority approved the sentence on 30 July 1969, but suspended the confinement for a period of 6 months.

7.  On 2 July 1970 at Fort Sam Houston, TX, he was convicted by a special court-martial of one charge consisting of four specifications of being AWOL from 31 October to 14 December 1969, 17 to 27 January 1970, 11 February to 3 March 1970, and 9 March to 11 May 1970.  The court sentenced him to a bad conduct discharge.

8.  On 6 August 1970, the convening authority approved his sentence and except for the bad conduct discharge, ordered it executed.  Additionally, he ordered the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

9.  On 13 August 1970 at Fort Hood, TX, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 7 July to 8 August 1970.

10.  On 18 September 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  Headquarters, 1st Armored Division, Fort Hood, TX, Special Court-Martial Order Number 7, dated 5 November 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

12.  He was discharged on 4 March 1971.  He separated on temporary records.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a character of service as under conditions other than honorable.  It also shows he completed 2 years, 9 months, and 28 days of creditable active service during this period and he had 225 days of lost time.

13.  There is no indication he suffered from PTSD or any other conditions during his military service.  Furthermore, his records show he underwent a psychiatric evaluation at the time of his discharge which indicated he was not suffering from a psychiatric disorder.

14.  On 5 December 1984 and 7 November 1986, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  He submitted:

* a Psychological Assessment Report, dated 17 February 2010, showing a diagnosis of various conditions, including PTSD, depression, anxiety, and panic attack
* an Intake Assessment and a Detailed Assessment of Post-Traumatic Stress Interpretive Report, dated 21 December 2007, showing a diagnosis of PTSD, alcohol dependence, and diabetes
* treatment plans related to PTSD

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

17.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had an extensive history of misconduct that included multiple instances of NJP, two courts-martial, and an extensive history of AWOL.  His misconduct spanned his entire military history and occurred at various stations.  The preponderance of the evidence shows he completed only 7 months of service in Vietnam.

2.  The evidence of record shows his trial by a special court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, the Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant's contention regarding PTSD is without merit as there is no such diagnosis in his military records and no evidence that his extensive history of AWOL was caused by PTSD.  This alleged issue relates to evidentiary matters which could have been raised or adjudicated in the court-martial appellate process and furnish no basis for re-characterization of the discharge.

4.  After a careful review of the applicant's entire record of service, including his first enlistment, it is clear his service did not meet the criteria for an honorable or a general discharge.  As a result, he is not entitled to 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 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)                                         AR20100028104



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028104



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1