IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20110000855 


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 a general discharge.

2.  The applicant states that at the time of his discharge the military did not recognize or seem to understand the full set of behaviors a person could experience with post-traumatic stress disorder (PTSD) caused by combat.  He further states that he had excellent conduct ratings until he went to Vietnam.  He believes he was experiencing the symptoms of undiagnosed PTSD.  He also states it would be in the interest of justice to upgrade his discharge given his undiagnosed PTSD.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Separation) and two pages of his DA Form 20 (Enlisted Qualification Record).

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 on 23 November 1970 for a period of 3 years and training as an aircraft maintenance apprentice.  He completed his basic training at Fort Ord, California and his advanced individual training at Fort Eustis, Virginia before being transferred to Vietnam on 10 June 1971 for duty as a helicopter repairman.  He was advanced to the pay grade of E-4 on 23 June 1971.

3.  On 28 February 1972, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

4.  On 20 March 1972, he departed Vietnam and was transferred to Fort Carson, Colorado on 1 May 1972.

5.  On 2 May 1972, NJP was imposed against him for willfully disobeying a lawful order from a superior noncommissioned officer.

6.  On 7 June 1972, NJP was imposed against him for being absent from his unit on 31 May 1972.

7.  On 7 August 1972, NJP was imposed against him for being absent without leave (AWOL) from his unit from 14 July to 30 July 1972.

8.  On 8 November 1972, NJP was imposed against him for being absent from his unit on 24 October 1972.

9.  On 3 April 1973, charges were preferred against the applicant for being AWOL from 1 March to 8 March 1973, from 20 March to 30 March 1973, and from 30 March to 3 April 1973.

10.  On 19 April 1973, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  Additionally, he was advised extensively of the procedures for applying to the Army Discharge Review Board (ADRB) and the ABCMR for an upgrade of his discharge.  He elected not to submit a statement in his own behalf.

11.  On 21 May 1973, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged on 30 May 1973 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 2 years, 5 months, and 1 day of total active service and had 37 days of lost time due to being AWOL.

13.  On 3 July 1973, in response to a letter from the applicant’s mother to the Secretary of the Army, the Adjutant General of the Army informed the applicant’s mother of the procedures for applying to the ADRB for an upgrade of his discharge and provided her the application form to do so.

14.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

16.  Army Regulation 635-200, 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct, his overall record of service, and the absence of mitigating circumstances.  Additionally, there is no evidence to support his contention that he was suffering from PTSD or that he could not distinguish right from wrong.  Accordingly, his service simply did not rise to the level of even a general 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)                                         AR20110000855



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ABCMR Record of Proceedings (cont)                                         AR20110000855



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