IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100029547 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable and that his pay grade of E-6 be restored.

2.  The applicant states he was a "gung-ho" airborne Soldier.  He served his country honorably in the Republic of Vietnam (RVN).  He was a good airborne trooper when he was in Italy.  He went off the deep end when he went to Fort Hood, Texas and he believes post traumatic stress disorder (PTSD) was the reason.  He has two honorable discharges and wants his grandchildren to know he was and is a true patriot.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 16 October 1968; 
DD Forms 214 (Report of Separation from Active Duty), ending on 10 December 1974 and on 1 September 1977; a certificate of training and diploma for completion of the Leader Preparation Course, dated 15 March 1973; a letter of commendation, dated 12 August 1976; a DA Form 2166-5 (Enlisted Evaluation Report), dated 20 August 1976; and a report of medical examination from the Department of Veterans Affairs (VA) Medical Center, dated 5 February 2009.

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 16 October 1965, the applicant enlisted in the Regular Army.  He completed initial training and was awarded military occupational specialty 63C (General Vehicle Repairman).

3.  On 1 June 1966, the applicant was assigned as a track vehicle repairman with 5th Battalion, 2nd Artillery Regiment, located at Fort Bliss, Texas.

4.  On 16 November 1966, the applicant went with his unit to the RVN.  He returned to the United States on or about 1 November 1967 and was assigned to the 3rd Battalion, 2nd Artillery Group, located at Fort Bliss, Texas.

5.  On 25 March 1968, the applicant accepted nonjudicial punishment (NJP) for missing midnight bed check.

6.  On 9 April 1968, the applicant accepted NJP for being drunk and disorderly at Fort Bliss, Texas.

7.  On 16 October 1968, the applicant was honorably released from active duty due to completion of required service and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He had attained the rank of specialist four, pay grade E-4, and completed 3 years of creditable active service.

8.  On 12 January 1973, the applicant again enlisted in the Regular Army.  He subsequently completed infantry training, and basic airborne training, and was awarded MOS 11B4P (Light Weapons Infantryman) with parachutist qualification.

9.  On 11 May 1973, the applicant was assigned to Europe.  On 11 June 1973, he was further assigned to the 509th Infantry Regiment located in the Federal Republic of Germany.  On 31 August 1973, his unit relocated to Italy.

10.  On 3 July 1974, the applicant was promoted to sergeant, pay grade E-5.


11.  On 10 December 1974, the applicant was discharged for the purpose of immediate reenlistment.  His service was characterized as honorable.

12.  On 11 December 1974, the applicant reenlisted and remained with the 509th Infantry Regiment in Italy.

13.  On 18 February 1976, the applicant accepted NJP for operating a passenger car while drunk.

14.  On 25 August 1976, the applicant departed Italy for Fort Hood, TX, and he was assigned to 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division.

15.  On 1 December 1976, the applicant accepted NJP for being absent without leave (AWOL) on or about 18-20 October and 21 October to 1 November 1976.

16.  On 8 February 1977, the applicant accepted NJP for failing to go to his appointed place of duty on 20 January 1977 (twice) and once on 23 January 1977.

17.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows the applicant was AWOL on the following dates:

* 18-19 October 1976
* 21-31 October 1976
* 19-23  December 1976
* 1-2 March 1977
* 26-28 April 1977
* 2 May-15 August 1977

18. On 16 August 1977, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for being AWOL from 2 May to 
15 August 1977.

19.  On 16 August 1977, the applicant underwent a physical examination.  He was found to be in good health and qualified for separation.
 
20.  On 16 August 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.
21.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

22.  In his request for discharge, the applicant acknowledged he understood he was admitting guilt to the charge(s) against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

23.  On 25 August 1977, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 1 September 1977, the applicant was discharged accordingly.  He had completed a total of 7 years, 
3 months, and 13 days of creditable active duty service and had accrued 
144 days of lost time due to AWOL and confinement.

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

25.  The applicant provides a report of medical examination, dated 5 February 2009, wherein the examining physician has diagnosed the applicant with PTSD, moderately severe, and an alcohol dependency secondary to PTSD.  The physician also diagnoses him with chronic obstructive pulmonary disease, peripheral arterial disease, impaired hearing/tinnitus, and erectile dysfunction.  The physician opines that the applicant's PTSD was most likely caused by his experience in the RVN and that alcohol dependency is most likely a result of his PTSD because it did not appear until after his return from the RVN.

26.  Army Regulation 635-200 (Personnel Separations):

	a.  Sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.

	b.  Provides that Soldiers discharged with a UOTHC characterization of service will be reduced to the lowest enlisted pay grade prior to discharge.

	c.  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.

	d.  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.

27.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to honorable because he was suffering from PTSD.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The available evidence is insufficient to show the applicant was suffering from PTSD or that such a condition was the direct cause of his misconduct.

4.  Based on the applicant's record of indiscipline and multiple periods of AWOL his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  The available evidence indicates the highest pay grade the applicant held was pay grade E-5.  Furthermore, regulatory guidance required that he be reduced to the lowest enlisted pay grade upon discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100029547



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ABCMR Record of Proceedings (cont)                                         AR20100029547



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