IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011313 


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 on behalf of her deceased spouse, a former service member (FSM), that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the FSM was suffering from post-traumatic stress disorder upon returning from service in the Republic of Vietnam and he did not have the mental health to understand what an undesirable discharge would mean to him or his family.

3.  The applicant provides the FSM's certificate of death.

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 FSM was inducted into the Army of the United States on 7 August 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer).  His record shows he served in the Republic of Vietnam during the period 5 January 1968 through 5 January 1969.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  The FSM received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 April 1969 for being absent without leave (AWOL).

4.  The FSM's records show he received a special court-martial conviction which was adjudicated on 12 August 1969 and approved on 23 August 1969 for being AWOL during the period 6 May 1969 through 28 July 1969.

5.  On 22 December 1970, charges were preferred against the FSM for being AWOL during the period 25 September 1969 through 14 December 1970.

6.  On 15 December 1970, the FSM consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other honorable conditions, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, the FSM voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the FSM indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood if his discharge request were 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.

8.  Records show the FSM underwent a separation medical evaluation and there was no evidence of a diagnosis or treatment for post-traumatic stress disorder or any other mental condition at the time of separation.

9.  On 29 January 1971, the separation authority approved the FSM's request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 8 February 1971, the FSM was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 2 years and 13 days of total active service with 537 days of lost time.

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

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred.  Commanders would ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will 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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate will normally be furnished to an individual who was discharged for the good of the Service.

12.  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.

13.  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 on behalf of the FSM to upgrade his discharge under other than honorable conditions to an honorable discharge has been carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The FSM's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  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 the rights of the FSM were fully protected throughout the separation process.  Further, the FSM's discharge accurately reflects his overall record of service.

3.  The applicant alleges that the FSM suffered from post-traumatic stress disorder from his service in the Republic of Vietnam.  There is no evidence in his military records and the applicant has not provided sufficient evidence which shows the FSM was diagnosed with post-traumatic stress disorder or any other mental condition at the time of his discharge.  Additionally, there is no evidence which shows the FSM's misconduct was a direct result of the alleged condition.  Therefore, this argument is not sufficient to support her request to upgrade the FSM's discharge.

4.  The FSM's record reveals he was AWOL for 537 days.  Based on this record of indiscipline, the FSM's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the FSM is not entitled to an honorable or a general discharge.

5.  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 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)                                         AR20110011313



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ABCMR Record of Proceedings (cont)                                         AR20110011313



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