BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010170 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he was discharged under intimidation.  He states his poor understanding of the English language and emotional state following his mother's death contributed to the intimidation.  He further states the Army did not know what his problems were because at the time there was little known about post-traumatic stress disorder (PTSD).

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a self-authored statement, and his mother's death certificate.

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 was born on 25 October 1949 and he was inducted into the Army of the United States on 13 May 1969 at 19 years of age.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  He served in the Republic of Vietnam from 18 October 1969 through 13 October 1970.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, he held the rank/grade of private (PVT)/E-1 at the time of his discharge.

3.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of his DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) for the period 23 May 1971 through 30 August 1972.  Item 38 (Record of Assignments) shows he was confined at the Post Stockade, Fort Dix, New Jersey, on 31 August 1972.

4.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial on 8 March 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an under other than honorable conditions character of service.  The DD Form 214 he was issued confirms he completed a total of 2 years, 2 months, and 13 days of creditable active service with 702 days of lost time.

5.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

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

7.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge was considered appropriate at the time the applicant was discharged.

8.  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 request to upgrade his undesirable discharge to a general discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  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 with a punitive discharge.  Discharges under the provisions of Army Regulation 
635-200, chapter 10, are voluntary requests for discharge 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 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.

3.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

4.  The applicant's record of service shows he was AWOL for the period 23 May 1971 through 30 August 1972.  Based on this record of indiscipline, the applicant's misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.



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 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)                                         AR20110010170



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ABCMR Record of Proceedings (cont)                                         AR20110010170



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