IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110014639 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  He states he was suffering from post traumatic stress disorder (PTSD) and collapsed under the stress.  He maintains he received a 100 percent disability rating for PTSD.  Additionally, he offers that his discharge should be upgraded because of his prior good service, especially in Vietnam.  He concludes that he feels he should have been medically discharged. 

3.  He provides his 9 April 1973 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)  

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 (RA) on 7 June 1971 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 2 November 1971 to 21 July 1972.  On 9 April 1973 he was honorably released from active duty and credited with 1 year, 10 months, and 
3 days of active duty service.  On 28 April 1981, he again enlisted in the RA.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 7 July 1981 to 12 July 1981.

4.  On 22 September 1981, charges were preferred against him for being AWOL from 28 July 1981 to 16 September 1981.

5.  On 22 September 1981, he underwent a mental status evaluation and he was determined to be mentally cleared for separation by the examining psychiatrist.  He said the applicant was mentally responsible and had the mental capacity to understand and participate in board proceedings.

6.  On 24 September 1981, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

8.  On 15 October 1981, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

9.  On 17 November 1981, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions character of service.  It also shows he completed 4 months and 27 days of net active service this period with the period of 28 July 1981 to 15 September 1981 and 7 July 1981 to 11 July 1981 listed as time lost.

10.  His record is void of any evidence and he has not provided any evidence showing he was diagnosed with PTSD or any type of medical condition at the time of separation.  

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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  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.

   c.  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 argues, in effect, that his discharge should be upgraded because he was diagnosed with PTSD which caused his indiscipline.   However, there is no evidence in his record and he provided no evidence to show he suffered from PTSD or any other mental disorder while he was in the military.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

3.  His record of service included one NJP and 52 days of time lost.  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.

4.  Additionally, his argument that his discharge should be upgraded because of his prior good service and the 100 percent disability rating he received for PTSD was also considered.  However, a prior period of honorable service and a disability rating of 100 percent are not sufficient as a basis to justify upgrading his 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)                                         AR20110014639





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ABCMR Record of Proceedings (cont)                                         AR20110014639



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