IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110010234 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states his UD should be upgraded based on his two prior periods of honorable service, and based on the fact he suffered from major depression and Post Traumatic Stress Disorder (PTSD) resulting from Vietnam service.  

3.  The applicant provides no documentary evidence in support of his application.  

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’s record shows he initially enlisted in the Regular Army (RA) on 23 January 1970, and was trained in and awarded military occupational specialty (MOS) 31B (Radio Mechanic).  On 19 January 1972, he was honorably released from active duty (REFRAD), in the rank of specialist four (SP4), and transferred to the U.S. Army Reserve (USAR).  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that during this period of active duty service he served in the Republic of Vietnam from 16 July 1970 through 15 July 1971, and he earned the following awards:

* National Defense Service Medal (NDSM)
* Army Commendation Medal (ARCOM)
* RVN Campaign Medal with 60 Device
* Vietnam Service Medal (VSM) with 1 bronze service star

3.  The record shows the applicant served in the USAR and Army National Guard (ARNG) through 14 March 1973, and on 20 July 1973, he again enlisted in the RA for three years.  

4.  The applicant’s disciplinary history for the enlistment under review includes a 17 September 1973 summary court-martial (SCM) conviction for violating Article 89 of the Uniform Code of Military Justice (UCMJ) by behaving with disrespect toward his superior commissioned officer on or about 6 August 1973.  

5.  The applicant’s record is void of any medical treatment records or other documents indicating the applicant suffered from any physically or mentally disqualifying medical condition while serving on active duty.  

6.  On 23 October 1973, a DD Form 458 (Charge Sheet) was prepared preferring  court-martial charges against the applicant for two specifications of violating Article 91 of the UCMJ by disobeying a lawful order and being disrespectful in language toward a superior warrant officer on or about 11 October 1973; and violating Article 86 of the UCMJ by going from his appointed place of duty without authority on or about 11 October 1973. 

7.  On 31 October 1973, the applicant consulted with legal counsel and after being advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

8.  On 13 November 1973, the separation authority approved the applicant’s request for discharge and directed he receive a UD.  On 19 November 1973, the applicant was discharged accordingly.  
9.  On 30 September 1983, the Army Discharge Review Board (ADRB) after carefully considering the applicant’s case determined his discharge was proper and equitable and voted to deny his request for an upgrade of his discharge and a change to the narrative reason or discharge.  

10.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge a UD was issued for members separating UOTHC.  

11.  Paragraph 3-7a of the same regulation 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.  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 discharge because of his prior honorable service and based on his suffering major depression and/or PTSD has been carefully considered.  However, there is no evidence to support this claim.

2.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It also shows he consulted with legal counsel and it was only after being fully advised of the effects of a UD that he voluntarily requested discharge.

3.  The applicant’s record properly documents his prior honorable service, including his combat service in the RVN, in the first DD Form 214 he was issued upon his REFRAD on 19 January 1972.  However, his record reveals a disciplinary record during the period of enlistment under review that includes an SCM conviction in addition to the court-martial charges that resulted in his discharge.  It further confirms he  voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge. 

4.  Based on the applicant's misconduct during the period of enlistment under review, the UD he received was normal and appropriate under the regulatory guidance in effect at the time.  Therefore, there is insufficient evidentiary basis to support an upgrade of his UD at this time.  

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)                                         AR20110010234





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ABCMR Record of Proceedings (cont)                                         AR20110010234



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