BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004733 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states after his first tour in the Republic of Vietnam (RVN) he was assigned to Fort Hood, TX where he lost his rank because he was exhibiting erratic and dramatic behavior.  During this time post-traumatic stress disorder (PTSD) was not a diagnosis.  He went to Germany and later reenlisted to return to the RVN.  He then went to Korea, still not knowing he had PTSD.  In Korea, he got into trouble by going into the black market.  His commander gave him the choice of resigning or going to Fort Leavenworth.  He believes that he deserves to have his discharge upgraded to an honorable discharge after having served two tours in the RVN and battling PTSD all his life.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) with an effective date of 30 December 1974
* his previously submitted DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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.  He enlisted in the Regular Army on 19 March 1969 for a period of 3 years.  On 15 July 1971 he was honorably discharged for immediate reenlistment.   On 16 July 1971, he reenlisted for 6 years.  He completed the training requirements and was awarded military occupational specialty 11B (Light Weapons Infantryman). 

3.  He was assigned to the 3rd Squadron, 11th Armored Cavalry Regiment in the RVN from 22 August 1969 to 13 August 1970.

4.  He was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 13th Infantry in Germany from 28 September 1970 to 25 August 1971.

5.  He returned to the RVN on 26 September 1971.  He was assigned to:

* 2nd Squadron, 11th Armored Cavalry Regiment from 1 October 1971 to 
3 March 1972
* HHC, 1st Battalion, 12th Cavalry from 3 March to 26 April 1972

6.  On 10 April 1972, he accepted nonjudicial punishment (NJP) for failure to obey a lawful order.

7.  He was assigned to the 1st Battalion, 8th Cavalry, Fort Hood, TX from 
3 December 1973 to 24 July 1974.

8. On 20 December 1973, he accepted NJP for failure to obey a lawful order from a commissioned officer and being absent from his unit during a 150 mile road march.  He appealed the punishment and his appeal was denied on 25 January 1974.

9.  On 2 August 1974, he was assigned to the 1st Battalion, 72nd Armor, 2nd Infantry Division, Korea.


10.  On 21 October 1974, court-martial charges were preferred against the applicant for:

* falsely representing himself as a sergeant first class (SFC) and making a signature of a SFC
* two specifications of using a Ration Control Plate belonging to a SFC
* unlawful purchasing two speakers

11.  On 10 December 1974, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

12.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

13.  He submitted a statement in his own behalf wherein he indicated a chapter 10 discharge would benefit both himself and the Army.  He stated if he accepted a special court-martial the possibility of being reduced to the rank of private E-1 was great.  He had a large number of debts and he was finding it hard to cover them at the time.  He saw no sense in the Army going through the time and money of a court-martial and confinement in a Government facility when it would serve no advantage to the Army.  He felt a chapter 10 discharge would be the fastest, most inexpensive, and easiest way to eliminate the problem for himself and the Army.




14.  His immediate and intermediate commanders recommended his request for discharge be approved and they recommended he receive a general discharge.

15.  On 16 December 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of a General Discharge Certificate.

16.  On 30 December 1974, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with a general discharge under honorable conditions.  He had completed 2 years, 3 months, and 17 days of creditable active service.  

17.  He applied for an upgrade of his discharge to the Army Discharge Review Board (ADRB).  On 23 March 1979, he was notified the ADRB denied his application for the upgrade of his discharge.

18.  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(s) charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and of the possibility of prejudice in civilian life if an undesirable discharge was issued to him, which was appropriate at the time of the applicant's discharge.

19.  Army Regulation 635-200 states 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.  

DISCUSSION AND CONCLUSIONS:

1.  He voluntarily requested discharge, admitted guilt to the offenses for which he was charged, and acknowledged he understood he could receive an undesirable discharge.  His request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.
2.  He states and his records show he served two tours in the RVN.  He claims that his misconduct was due to PTSD.  However, there is no evidence available to indicate he was diagnosed with PTSD.  

3.  His immediate and intermediate commanders recommended and he received a general discharge under honorable conditions.  An undesirable discharge was normally issued to individuals who were discharged for the good of the service.  Based on the available evidence, the two tours that he served in the RVN were clearly taken into consideration when the characterization of his service was determined.

4.  The type of discharge and the reason for separation were appropriate considering all the facts of the case.  The available evidence contains no indication of procedural or other errors that would have jeopardized his rights

5.  His acceptance of NJP on two occasions and the seriousness of the charges that were preferred against him clearly show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is an insufficient basis to upgrade his discharge to an honorable 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)                                         AR20110004733



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ABCMR Record of Proceedings (cont)                                         AR20110004733



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