BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110013699 


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 under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  He states he experienced a lot of mental trauma during his tour in Vietnam and was not able to cope with the death of his uncle and brother.  He maintains that their deaths put him "over the edge."

3.  He provides a supporting statement.

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 was inducted into the Army of the United States on 21 April 1967.  He served in the Republic of Vietnam from 
15 September 1967 to 13 February 1968.

3.  On 19 May 1969, he was convicted by a special court-martial of being absent without leave (AWOL) on two separate occasions:  3 September 1968 to 24 April 1969 and 29 May 1969 to 5 June 1969.  

4.  On 25 April 1975, charges were preferred against him for being AWOL from 
2 August 1969 to 22 April 1975.

5.  On 30 April 1975, he underwent a mental and physical evaluation.  The mental status evaluation form is not correctly annotated and there are no remarks listed in regards to his mental state.  However, the physical examination shows he was deemed qualified for separation under chapter 10. 

6.  On 30 April 1975, he consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  He signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all VA benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

8.  In his statement he said he would like to be out of the Army because he had been away from the Army a long time.  He added that he could not adjust to Army life.  He offered that he was 34 years old, had a wife, car, and a job at home and he was needed to take care of them.

9.  On 26 May 1975, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.

10.  His DD Form 214 (Report of Separation from Active Duty) shows on 
22 September 1975 he was discharged with an undesirable discharge characterized as under other than honorable conditions.  He completed 2 years and 15 days of active service with 230 days lost under Title 10, U.S. Code, section 972.
11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  In a supporting statement, the applicant's two aunts said the applicant was a very loving and outstanding individual until his tenure in the military.  They offered that he was withdrawn and in a traumatic depressive state which got worse upon his assignment to Vietnam.  They mentioned the deaths of his uncle and brother and opined that the death caused additional stress to his well being.  

13.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge was normally considered appropriate.

14.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention, in effect, that his mental state due to his tour in Vietnam and subsequent death of family members led to indiscipline was considered.  However, there is no evidence and he has not provided any to show that he sought counseling or treatment concerning his mental state.  In fact, the evidence of record shows that he received both a mental and physical examination and the physical examination determined that he was qualified for separation.  Therefore, his contention that his state of mind and Vietnam service led to his indiscipline is not supported by the available evidence.


2.  The evidence of record shows the applicant's request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was voluntary, administratively correct, and in compliance with applicable regulations.

3.  His record of service included a special court-martial and 230 days of AWOL. Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to a general, under honorable conditions or 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)                                         AR20110013699





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013699



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1