IN THE CASE OF:	

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110014050 


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 discharge to an honorable discharge (HD).  

2.  The applicant states he served in the Republic of Vietnam (RVN) and was too young, scared and unaware of how to be treated for what he now knows is a Post Traumatic Stress Disorder (PTSD).  He claims his military record up to the time of his discharge was excellent and looking back on that period of his life, he now realizes he was in dire need of psychiatric care.  

3.  The applicant provides no documentary evidence in support of his request.  

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 initially inducted into the Army on 
22 September 1967.  On 27 September 1967, the applicant was honorably discharged for the purpose of enlisting in the Regular Army, and on 
28 September 1967, he enlisted in the RA for 3 years.  He was trained in and awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).   

3.  The record shows the applicant served in the RVN from 3 October 1968 through 2 October 1969, and earned the National Defense Service Medal, Vietnam Service Medal (VSM), RVN Campaign Medal, and 2 Overseas Service Bars.  His record documents no individual acts of valor.  

4.  The applicant’s disciplinary history includes three special court-martial convictions on 6 June 1968, 31 August 1970, and 29 September 1970, all for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for separate periods of being absent without leave (AWOL).  It also includes his acceptance of nonjudicial punishment (NJP) on 15 June 1970, for disobeying an order and on
28 February 1968, for 5 days of AWOL.  

5.  A Standard Form (SF) 88 (Report of Medical Examination) documenting the separation medical examination completed on the applicant on 25 August 1970, shows all normal findings in the clinical evaluation portion of the form, including the psychiatric area.  It notes no disabling physical or mental conditions and the examining physician found the applicant was medically qualified for separation/retention.  The record is void of any medical treatment records indicating the applicant was suffering from or treated for any disqualifying medical or mental condition at the time of his discharge processing.  

6.  On 3 November 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from 2 October through 16 October 1970.  

7.  On 4 November 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment under the UCMJ, and of the procedures and rights available to him.  Subsequent to receiving this counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that he could receive an undesirable discharge (UD), and as a result of receiving this type of discharge he would be deprived of many or all Army benefits, that he could be ineligible for 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. 

8.  On 18 November 1970, the separation authority approved the applicant’s request for discharge and directed the applicant receive a UD and that he be reduced to private/E-1.  On 18 November 1970, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant at the time shows he completed a total of 2 years, 9 months, and 29 days of creditable active military service and accrued 118 days of time lost due to AWOL.  

9.  On 25 March 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant’s discharge to a general discharge (GD) under the provisions of the Special Discharge Review Program (SDRP).  On 6 September 1978, the ADRB reviewed the applicant’s case under uniform standards as required by Public Law 95-126, and it voted unanimously not to affirm the upgraded discharge.  

10.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge a UD was issued for members separating UOTHC.  

11  Paragraph 3-7a of the same regulation provides that an HD 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 request that his discharge be upgraded to an HD because he suffered from a PTSD has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant’s record while documenting satisfactory combat service in the RVN, fails to reveal any acts of significant valor.  His record is also void of any medical records showing he was suffering from any significantly disabling mental condition that rendered him unfit to perform his military duties satisfactorily.  


3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - 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.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UD and that he understood the possible effects of receiving this type of discharge which included the loss of health/medical benefits.  

4.  The UD received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge.  Further, affirmation of the initial upgraded discharge by the ADRB is not supported by the applicant’s overall record of service given his extensive disciplinary history.   

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)                                         AR20110014050



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ABCMR Record of Proceedings (cont)                                         AR20110014050



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