IN THE CASE OF:	  

		BOARD DATE:  26 January 2012

		DOCKET NUMBER:  AR20110014024 


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 honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states after extending for six months in the Republic of Vietnam (RVN) and receiving his second Bronze Star Medal and promotion to the rank/grade staff sergeant (SSG)/E-6, he went on leave and remained absent without leave (AWOL).  He further states, in effect, he does not think his general discharge reflects his entire career as a soldier and he believes the reason he went AWOL was due to undiagnosed post-traumatic stress disorder (PTSD) which was not being treated by the military, but is currently being treated by the Cincinnati Veterans Administration Medical Center.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* 5 pages of Special Processing Company separation documents

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 was born on 18 June 1949 and he enlisted in the Regular Army on 27 November 1967 at age 18.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Field Artillery Crewman).  He served in the RVN from 17 June 1968 through 22 December 1969.  The highest rank/grade he attained while serving on active duty was SSG/E-6 and he continued to hold this rank at the time of his discharge.

3.  On 18 January 1971, charges were preferred against the applicant for being AWOL for the periods:

* 7 February through 1 April 1970
* 14 April through 17 August 1970
* 2 September through 28 December 1970

4.  On 5 February 1971, the applicant submitted a statement in conjunction with his request for discharge for the good of the service in lieu of trial by court-martial which states, in effect:

   a.  After spending one year in the RVN, he received the Bronze Star Medal and promotion to the rank/grade sergeant/E-5.  He extended for six months and received a second Bronze Star Medal and promotion to the rank/grade SSG/E-6.

   b.  While serving in the RVN, he lost all respect for the Army after witnessing the actions of an officer which resulted in the death and deforming of six men on three separate occasions.  
   
   c.  He states he tried to persuade himself to forget the incidents and finish his enlistment, but was unable to do so.  He ultimately went home on leave and remained there which resulted in his AWOL status.  

5.  On 15 February 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant 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 that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

7.  On 27 May 1971, the separation authority approved the applicant's request for discharge and directed that he receive a general discharge certificate.  On 4 June 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 5 months, and 27 days of total active service with 283 days time lost.

8.  Records show the applicant underwent a separation medical evaluation and a routine psychiatric evaluation and there was no evidence of a diagnosis or treatment for PTSD or any other mental condition at the time of separation.

9.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

10.  There is no indication that the applicant 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge should be upgraded to an honorable discharge due to suffering from PTSD was carefully considered.

2.  The applicant'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 applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant alleges he suffered from PTSD from his service in the RVN.  There is no evidence in his military records and the applicant has not provided sufficient evidence which shows he was diagnosed with PTSD or any other mental condition at the time of his discharge.  Additionally, there is no evidence which shows his misconduct was a direct result of the alleged condition.  Therefore, this argument is not sufficient to support his request to upgrade his discharge.

4.  The applicant's record reveals he was AWOL for 283 days.  Based on the severity of the offense, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.    Therefore, the applicant is not entitled to an honorable 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 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)                                         AR20110014024



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ABCMR Record of Proceedings (cont)                                         AR20110014024



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