BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110002238 


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 when he returned from Vietnam, he made poor choices and believes that was due to him suffering from Post-Traumatic Stress Disorder (PTSD).  He would now like to share his military history with his grandchildren and obtain Department of Veterans Affairs (VA) benefits.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter from the Colorado Springs (CO) Vet Center, dated 20 January 2011
* six letters of support

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  An official from the applicant's Senator's office requests, in effect, consideration of the applicant's PTSD, combat experiences, and decorations prior to reaching a decision in this case.

2.  The official states the applicant was awarded two Bronze Star Medals for valor, the Army Commendation Medal, and the Purple Heart.  The applicant is currently diagnosed with PTSD and the treating physicians believe the applicant may have been self-medicating his PTSD with marijuana while he was on active duty, which led to his undesirable discharge.  The official continues that the applicant strongly believes his is an extraordinary case that an upgrade of his discharge is necessary not only for him to receive VA medical treatment, but that it is the morally correct decision to make in his case.

3.  The official provides a letter from the applicant.  In that letter the applicant talks about how he has suffered from nightmares, extreme loss of sleep, and anxiety for the past 40 years and that he has now been diagnosed with PTSD.  He adds that prior to his tour in Vietnam he worked hard as a paperboy to help his mom and family.

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 30 March 1970.  He was awarded military occupational specialty 11D (armor reconnaissance specialist).  He served in Vietnam from 16 September 1970 to 11 September 1971.

3.  On 15 April 1971, the applicant was medically evaluated.  In that evaluation he reported having witnessed three friends killed 2 weeks earlier when the armored personnel carrier (APC) they were in was hit by a rocket propelled grenade (RPG).  The applicant reported having nightmares and feeling the fighting was not worth the price.

4.  On 20 April 1971, the applicant was diagnosed with acute situational maladjustment and depression, manifested by insomnia and poor appetite.  He was admitted to the hospital.

5.  On 21 April 1971, he was diagnosed as going through heroin withdrawal and he was too agitated to be further diagnosed at that time.

6.  On 23 April 1971, he was dismissed from the ward.  In his discharge summary it was recorded that the applicant reported coming from a broken home whose mother drank alcoholically.  His father died when he was 7 years old.

7.  On 14 July 1971, the applicant reported quitting drugs around 4 or 5 months before, but started again about a month before.

8.  On 13 September 1971, he was hospitalized for heroin use.

9.  The applicant's discharge packet is not contained in the available records.  However, his record contains a DD Form 214 for the period ending 8 May 1972 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with an Undesirable Discharge Certificate.  He was assigned a separation program number (SPN) of 246 which refers to discharge for the good of the service (in lieu of trial by court-martial).  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:


* National Defense Service Medal
* Vietnam Campaign Medal with Device (1960)
* Vietnam Service Medal with 2 bronze service stars (for campaign participation)
* Army Commendation Medal
* Purple Heart
* Combat Infantryman Badge
* 2 Overseas Service Bars
* Expert Marksmanship Qualification Badge with Rifle Bar

10.  The applicant's record does not show he was awarded any Bronze Star Medals or any other valorous award.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.

13.  Army Regulation 635-200, 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.  Therefore, he is not entitled to an honorable or a general discharge.

2.  While the applicant reported having witnessed friends killed in action while he was in Vietnam, at that time he also reported he came from a broken home with a mother who drank alcoholically and he was treated for heroin withdrawal.  Therefore, there is insufficient evidence to determine whether PTSD caused him to commit the misconduct for which he was discharged as he contends, or whether it was due to his apparent drug abuse.

3.  Since the applicant's drug abuse and reaction to combat stressors were known at the time of his discharge, it must be presumed that these were taken into consideration when the applicant's request for discharge was approved.  There is no reason to second-guess the soundness of the separation authority's judgment and decision at this late date.

4.  It is noted that the applicant was awarded the Purple Heart for wounds incurred in combat and the Army Commendation Medal for meritorious service in Vietnam; however, there is no evidence he was awarded any Bronze Star Medals for valor at any time during his tenure of service.

5.  While the applicant's desire to secure VA benefits is understandable, the Board does not correct a properly-issued discharge solely to establish entitlement to benefits from another agency.

6.  The applicant's post-service conduct and demeanor is commendable; however, it is insufficient to upgrade a properly issued discharge.

7.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.

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)                                         AR20110002238



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ABCMR Record of Proceedings (cont)                                         AR20110002238



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