IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100029328


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 discharge be upgraded.

2.  The applicant states:

* prior to going AWOL (absent without leave) his service was good
* he served in the Vietnam War where he engaged in combat
* his wartime service was exemplary
* he was promoted on time or ahead of time
* combat stressors caused him to suffer a breakdown
* the Department of Veterans Affairs (VA) rates him disabled with post traumatic stress disorder (PTSD)
* it is unfair for him to continue to suffer the stigma of a bad discharge

3.  The applicant provides:

* treatment records from Dammasch State Psychiatric Hospital, Wilsonville, OR, dated 1977, with diagnosis of schizophrenia
* VA Rating Decision, dated 23 November 2010, awarding a 30% rating for PTSD

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 31 December 1970.  He was awarded military occupational specialty (MOS) 94B (Cook).  He served in Vietnam from 6 August 1971 to 20 April 1972 as a cook with Headquarters and Headquarters Detachment, Qui Nhon Sub Area Command, U.S. Army Support Command.  He was honorably separated on 22 April 1972 at Oakland, CA.  He received no citations for valor or meritorious service during his enlistment.

3.  The applicant was assigned to the U.S. Army Reserve (USAR) Control Group (Annual) following his release from active duty.  

4.  On 15 September 1972, he again enlisted in the RA.  He was assigned to Fort Lewis, WA where he served as a cook in the following units:

* Headquarters and Headquarters Battery (HHB), 9th Infantry Division Artillery
* HHB, 2nd Battalion, 4th Field Artillery

Eventually, in December 1973, he received on-the-job training as a field artillery crewman in MOS 13B, and MOS 94B became his secondary MOS.  He was promoted to the rank of Sergeant (SGT/E-5) on 9 April 1974 and became a Redeye (Missile) Team Chief with HHB, 3nd Battalion, 4th Field Artillery.

5.  On 14 January 1975, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 15 January 1975.  During this new period of service, he went AWOL for 191 days from 5 March 1975 through        11 September 1975.

6.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly-constituted DD Form 214 (Report of Separation from Active Duty) which identifies the reason and characterization of the discharge.  The evidence of record shows the 


applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

7.  The applicant's DD Form 214 for the period ending 10 November 1975 shows he was discharged under other than honorable conditions under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.  It also shows he was AWOL for 191 days.

8.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 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, 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 an individual who was discharged for the good of the Service.

10.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.



	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.

2.  The applicant's medical records from Dammasch State Hospital and his VA Disability Rating decision have been reviewed.  The fact the applicant served honorably for almost 6 1/2 years before going AWOL suggests his misconduct was based not on medical issues, but on other factors.

3.  In the absence of the applicant’s request for discharge under Chapter 10, administrative regularity in the processing of his discharge is presumed.  There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.  It would appear that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the available facts of the case.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 

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)                                         AR20100029328





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ABCMR Record of Proceedings (cont)                                         AR20100029328



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