IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013813 


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 be upgraded.

2.  The applicant states:

	a.   his discharge was inequitable because it was based on an isolated incident in 36 months of service with no other adverse action.

	b.  when he returned from Vietnam he was suffering from Post Traumatic Stress Disorder (PTSD) and was in a state of mental distress when he went absent without leave (AWOL). 

	c.  he has been diagnosed with prostate cancer and recently applied for Department of Veterans Affairs (DVA) benefits.  With his current discharge he is not eligible for DVA benefits.

3.  The applicant provides no documentary evidence.

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 enlisted in the Regular Army on 8 April 1968 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 51N (water supply specialist).  He served in Vietnam from 31 August 1968 to 23 August 1969.      

3.  He went AWOL on 5 February 1970 and returned to military control on 
27 June 1971.

4.  On 20 July 1971, he underwent a mental status evaluation.  He was found mentally responsible and no significant mental illness was noted.

5.  On 28 July 1971, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-206 for misconduct due to unauthorized absence in excess of one year.  

6.  The applicant consulted with counsel and waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement on his own behalf.      

7.  On 7 August 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

8.  He was discharged on 27 August 1971 with an undesirable discharge under the provisions of Army Regulation 635-206 for misconduct due to unauthorized absence in excess of one year.  He had served 1 year, 11 months, and 21 days of total active service with 509 days lost due to AWOL.

9.  There is no evidence which shows the applicant was diagnosed with PTSD or any mental condition prior to his discharge.

10.  On 19 May 1982, the Army Discharge Review Board denied his request for an honorable discharge.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided for the separation of personnel for desertion and absence without leave.  The regulation stated that an individual might be considered for discharge under this regulation when the unauthorized absence had continued for more than one year.  An undesirable discharge was normally considered appropriate.  

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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.  He contends his discharge was inequitable because it was based on an isolated incident in 36 months of service with no other adverse action.  It is noted he did not have any other disciplinary actions other than the 509-day AWOL period but he only served 1 year, 11 months, and 21 days of his 3-year enlistment.

2.  Although he contends when he returned from Vietnam he was suffering from PTSD and was in a state of mental distress when he went AWOL, there is no evidence that shows he was diagnosed with any mental condition prior to his discharge.  There is also no evidence that shows he was having mental problems in 1970/1971 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.

3.  A discharge is not changed for the purpose of obtaining DVA benefits.

4.  His record of service included 509 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.



5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110013813





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ABCMR Record of Proceedings (cont)                                         AR20110013813



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