IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029058 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that his discharge was only for being late returning from a pass.  He furthers states that he was a young country boy when he joined the Army during the Vietnam Era.  He was a non-drinker with full intentions of being a good combat veteran; however, things came out quite differently.  He went undiagnosed with post traumatic stress disorder (PTSD).  He became disturbed in his thoughts, moods, and actions and he began to drink alcohol.  He became a compulsive alcoholic due to an undiagnosed mental illness.  His PTSD, anxiety, and bipolar disorder went unnoticed in the service.  Since his discharge he has spent numerous days and nights hospitalized and unspecified visits to treatment centers.  He has had numerous jail convictions and four prison terms with suicide as a last resort.  He has lost a lot because of his mental illness including two wives, two homes, his family, well-paying jobs, his self-respect, and any hopes of ever living a normal life.  He is asking for mercy to have his discharge upgraded to a general discharge so he could go back to school, use the Post Exchange, and receive medical services.

3.  The applicant provides:

	a.  several pages of progress notes from the Biloxi Department of Veterans Affairs (VA) Medical Center (VAMC); and

	b.  a letter from the Psychological Residential Treatment Program (PRRTP) Clinical Coordinator at the VA Gulf Coast Veterans Health Care System in Biloxi, MS, dated 29 July 2010, informing him of his acceptance to participate in the PRRTP.

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.  On 5 December 1972, the applicant enlisted in the Regular Army.  He completed training and he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

	a.  30 October 1973, for speeding and failing to go at the time prescribed to his appointed place of duty;

	b.  29 November 1973, for failing to go at the time prescribed to his appointed place of duty 12 times between 11 October and 20 November 1973 and driving his privately owned vehicle without a State driver's license;

	c.  8 January 1974, for failing to report for company formation; and

	d.  11 March 1974, for being absent without leave (AWOL) from 5-6 March 1974 and for failing to go to work call formation.

4.  On 2 March 1975, he was convicted by a special court-martial of being AWOL from 24 January to 27 January 1974 and of breaching the restraint imposed by not reporting back to the Correctional Custody detail.


5.  On 15 November 1975, charges were preferred against him for being AWOL from 4 August to 23 October 1975. 

6.  On 20 November 1975, the applicant consulted with counsel and voluntarily requested 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 he understood the elements of the charge against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged he understood he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he would be deprived of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated he received legal advice, but the request was made voluntarily and reflected his own free will.

7.  On 19 December 1975, the separation authority (a major general) approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

8.  On 21 January 1976, the applicant was discharged accordingly.  He had completed 2 years, 5 months, and 8 days of total active service.

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

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

	a.  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.


	b.  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.

	c.  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.  

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence to substantiate the applicant's claims of PTSD, bipolar disorder, or other mental illness that he contends led to his undesirable discharge.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his record of serious misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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 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)                                         AR20100007379



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ABCMR Record of Proceedings (cont)                                         AR20100029058



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