BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110000129 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states he was suffering from post traumatic stress disorder (PTSD) when he returned from the Republic of Vietnam (RVN) and still is.  In a two-page narrative, he tells of his combat experiences in the RVN and how he smoked marijuana and drank every day.  When he returned to the United States people had thrown tomatoes, eggs, and other nasty stuff at him.  His friends, from before going to war, even shunned him.  He went absent without leave (AWOL), was apprehended, released, and went AWOL again.  He was offered an opportunity to resign from the service and said yes.  His addiction to drugs and alcohol lasted until 18 November 1988.  He had lived in the woods, couldn't find or hold a job, and was in a bad relationship with a woman and her two children for 27 years.

3.  The applicant provides copies of his DD Form 214; psychological consultation and evaluation dated 3 and 10 November 2010; and a letter of support, dated 
2 December 2010.

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 28 December 1966, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

3.  Records show that he applicant served in the RVN from on or about 22 July 1967 to an undetermined date in April or May 1968.

4.  On 7 November 1968, the applicant was convicted by a special court-martial for AWOL from 1 August to 22 October 1968.

5.  On 6 December 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for AWOL from 12 to 17 November 1968.

6.  On 25 March 1969, charges were preferred under the UCMJ for AWOL, during the period 10 to 18 March 1969.

7.  On 20 March 1969, 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 an under other than honorable conditions (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.

9.  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, that he could receive a UOTHC discharge which would deprive 


him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

10.  On 17 April 1969, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 17 April 1969, the applicant was discharged accordingly.  He had completed a total of 1 year, 9 months, and 19 days of creditable active duty military service and had accrued 181 days time lost due to AWOL and confinement.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge UOTHC is normally considered appropriate.  However, at the time, an undesirable discharge was normally given.

13.  Under the UCMJ, the maximum punishment allowed for AWOL of more than 3 days but less than 30 days is a forfeiture and 6 months confinement.  The UCMJ also provides that if an accused is found guilty of two or more offenses for none of which dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowances.

14.  Army Regulation 635-200:

	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 (emphasis added), 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.  

15.  The psychological consultation, provided by the applicant, dated 
3 November 2010 states that his emotional status was evaluated because he needed a determination whether the presence of PTSD was associated with his combat experiences during the Vietnam War.

	a.  On a mental status examination, the applicant was alert, attentive, and cooperative.  He was oriented to person, place, time, and situation.  Recent memory seemed intact.  Auditory comprehension was satisfactory.  Speech was fluent and normal in rate and volume.  Affect was somewhat constricted; mood was pleasant.  No peculiarities to thought content or process were elicited.  Behavioral insight and judgment was satisfactory.  On a symptom screening of PTSD symptomatology, the total severity of his symptoms was positive; however, there was an indication that he did not fully meet the diagnostic symptom criteria.

	b.  Current emotional status, as gathered through observation, interview, and symptom questioning, suggested a significant disturbance.  The applicant agreed to a follow-up psychological evaluation that would involve the use of the clinician-administered PTSD scale to better characterize the nature and extent of the reported symptoms of PTSD.

16.  The follow-up psychological evaluation, provided by the applicant, dated 
10 November 2010 reports that he underwent a clinician-administered PTSD Scale for Diagnostic and Statistical Manual for Manual for Mental Disorders (DSM-IV).

	a.  The findings indicated a significant amount and intensity of symptoms over the past month that suggest the presence of PTSD.

	b.  The applicant's responses indicated he had three life-threatening experiences in the RVN that elicited intense fear and horror (i.e., killing enemy combatants, firing on a child who was booby-trapped with grenades, and being pinned down by the enemy and used as bait to lure troops to them to be killed).

	c.  The applicant demonstrated persistent avoidance of anything associated with the trauma and experienced persistent symptoms of increased physiological arousal manifested by difficulty falling or staying asleep, irritability or outbursts of anger, and an exaggerated startle response.



	d.  The applicant reported that these symptoms persisted throughout the 
2-year period from his return from the RVN and his discharge from the military.  These symptoms significantly disrupted his social and occupational functioning and triggered his episodes of being AWOL from the military.  They subsequently resulted in his discharge under other than honorable conditions.

	e.  The psychologist's impression was that the applicant had the necessary symptoms of sufficient severity toward the diagnoses of PTSD and that from the history provided by the applicant, his PTSD occurred as a result of his Vietnam War experiences and have persisted to the present.

17.  On 2 December 2010, a representative from the Vietnam Veterans of America Service Office wrote in a letter essentially requesting that the Board grant the applicant an upgrade of his discharge based on his PTSD acquired as a result of his service in the RVN.  The author contends that had the applicant returned to duty instead of going AWOL, he most likely would have been discharged early with an honorable discharge and, therefore, based on his PTSD and compassion, his discharge should now be upgraded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge 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 tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant readily admits to using drugs and alcohol every day in the RVN and subsequently being addicted to such until 1988.  Even though a clinically-administered evaluation indicates that he is now suffering from PTSD, the applicant's statements during his mental examination are not sufficient to show his multiple periods of AWOL after returning from the RVN was due to such mental condition.

4.  Based on the applicant's record of AWOL resulting in a court-martial and NJP, 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 to either a fully honorable or a general discharge.



5.  In view of the above, the applicant's request should be denied.

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)                                         AR20110000129





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ABCMR Record of Proceedings (cont)                                         AR20110000129



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