IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110010328 


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.

2.  The applicant states, in effect, he was suffering from stress and under duress at the time of his discharge.  After serving in Vietnam, he was assigned to Fort Bragg, NC and he did not receive the help that he needed.  He was unable to cope with his surroundings and his commanders thought he was disobedient.  He received help after he was discharged.

3.  The applicant provides:

* Statement of support
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Discharge orders
* Recommendation for separation
* Consultation sheet
* Medical records, progress notes, and other clinical records
* 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's records show he enlisted in the Regular Army for 2 years on 20 May 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Vietnam from 3 December 1969 to 9 November 1970.  While in Vietnam, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of military Justice (UCMJ) on:

* 7 July 1970, for willfully disobeying a lawful order from a commissioned officer
* 10 July 1970, for being apprehended during curfew hours and willfully disobeying a lawful order
* 11 October 1970, for failing to obey a general regulation

4.  Upon completion of his Vietnam tour, he was assigned to Fort Bragg, NC, on or about 10 December 1970.

5.  On 18 February 1971, he underwent a command-directed physical and psychiatric examination.  The military doctor found the applicant met medical and psychiatric retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He was determined to be mentally responsible, able to distinguish right from wrong, and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings. 

6.  On 19 March 1971, he was placed in pre-trial confinement and his command preferred court-martial charges against him for:

* one specification of disobeying a lawful order from his company commander to remove a headband from his head
* one specification of disobeying a lawful order from a noncommissioned officer to open his locker and display his equipment during an annual general inspection


7.  On 7 April 1971, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations), for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged that he was making the request of his own free will and he had not been subjected to any coercion.  He also acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate.  He further acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 12 April 1971, the applicant's immediate commander recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate.  He indicated that he had counseled the applicant repeatedly regarding his flagrant acts and outright denial of authority.  

10.  On 13 April 1971, the applicant's intermediate commander interviewed him.  He stated that he had counseled the applicant twice.  The applicant fully understood right from wrong and that his misconduct was deliberate.  Conviction or confinement would not change the applicant.  No other efforts to rehabilitate him would succeed.  His prompt discharge was in the best interest of the Army and the battalion.  He also recommended the issuance of an Undesirable Discharge Certificate.

11.  On 21 April 1971, the applicant's senior commander also interviewed him and recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.

12.  On 30 April 1971, the Commanding General (separation authority), 82nd Airborne Division, Fort Bragg, NC, approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 19 May 1971.


13.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed a total of 1 year, 10 months, and 14 days creditable active military service and he had 46 days of lost time.

14.  On 29 May 1973, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  He submitted:

	a.  A character reference letter, dated 25 April 2011, from an individual who describes some of the stress that a Soldier endured after returning from Vietnam.

	b.  Consultation sheets, dated 4 and 8 October 1971, which show a psychiatric evaluation diagnosed him with a conversion reaction - tension headaches. 

	c.  VA hospital summary sheet, dated 5 November 1971, that shows a diagnosis of depressive reaction and possible schizophrenic reaction.

	d.  Multiple medical documents, progress notes, and other documents, dated on various dates after he was discharged from the Army, that show he was seen for various psychiatric issues. 

16.  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, an undesirable discharge was considered appropriate at the time.

17.  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.

18.  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 shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

2.  Prior to discharge, he underwent a medical and a psychiatric evaluation and the applicant met medical and psychiatric retention standards.  He was determined to be mentally responsible, able to distinguish right from wrong, and to adhere to the right.  He had the mental capacity to understand and participate in board proceedings. 

3.  During his separation process, he was interviewed and counseled by his chain of command.  His immediate and intermediate commanders believed that his flagrant acts and outright denial of authority were deliberate.  They believed the applicant fully understood right from wrong and that his misconduct was deliberate.  Conviction or confinement would not have changed him.  No other efforts to rehabilitate him would have succeeded.  His prompt discharge was in the best interests of the Army and the battalion. 

4.  There is no evidence that the applicant's repeated misconduct, beginning with his disregard for authority in Vietnam and ending with the court-martial charges at Fort Bragg, were a result of stress.  In any case, he could have elected trial by a court-martial if he believed that he was innocent or that extenuating circumstances existed..  

5.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or 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)                                         AR20110010328



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ABCMR Record of Proceedings (cont)                                         AR20110010328



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