IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110014984 


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 undesirable discharge (UD) of 5 June 1973.

2.  The applicant states he had then and now has post-traumatic stress disorder (PTSD) as a result of serving in the Republic of Vietnam (RVN).  He claims to suffer from alcoholism and a bad temper.

3.  The applicant provides a clinical psychologist's letter and DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge), dated 7 March 1970 and 28 June 1971, in support of his application.

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 19 February 1968.  He served for 1 year, 11 months, and 23 days until being honorably released from active duty on 7 March 1970.

3.  On 26 April 1971, he enlisted in the Regular Army and he was honorably discharged for the purpose of immediate reenlistment on 28 June 1971 after serving 2 months and 3 days.  He reenlisted on 29 June 1971 and began his service in the period of enlistment under review.

4.  The applicant's record shows he was first advanced to the rank of specialist four/E-4, the highest rank he held while serving on active duty, on 18 February 1970 and he retained that rank when he enlisted in the Regular Army on 26 April 1971.  It further shows he was reduced to the rank of private/
E-1 for cause on 16 June 1972.

5.  The record shows the applicant served in the RVN from 3 March 1969 through 10 March 1970.  It also shows he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Army Commendation Medal
* Air Medal
* Combat Infantryman Badge
* RVN Gallantry Cross with Palm Unit Citation

6.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 December 1968 for being absent without leave (AWOL) from 7-9 December 1968 and on 26 March 1969 for being AWOL from 25 February-10 March 1968.  It also includes a summary court-martial conviction on 30 October 1968 for violating Article 86 of the UCMJ by being AWOL from 
13-23 September 1968 and a special court-martial conviction on 13 June 1972 for two specifications of violating Article 86 of the UCMJ by being AWOL from 5 October-3 November 1971 and from 22 November 1971-8 May 1972.  The record shows the applicant accrued a total of 581 days of time lost during five separate periods of AWOL between 13 September 1968 and 16 April 1973, two separate periods of confinement between 10 November 1971 and 20 June 1972, and one period of imprisonment from 6 November through 15 November 1971.

7.  On 21 June 1972, the applicant departed AWOL from the U.S. Army Correctional Holding Detachment, Fort Knox, Kentucky, and was dropped from the rolls of the organization.  On 17 April 1973, the applicant was apprehended by the Toledo, Ohio, city police on a charge of larceny.

8.  The record also contains a Standard Form 88 (Report of Medical Examination) completed on 10 May 1973 during the applicant's discharge processing.  This document contains a "normal" psychiatric evaluation in the clinical evaluation portion of the form and is void of any indication the applicant suffered from a disabling physical or mental condition at the time.  This document further confirms the examining physician found the applicant was medically qualified for retention/separation and medically cleared him for discharge.

9.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does include a properly-constituted DD Form 214 that shows the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  It further shows he completed 5 months of creditable active military service and accrued 555 days of time lost due to AWOL, confinement, and imprisonment during the period of enlistment and a total of 2 years, 8 months, and 13 days of creditable active military service.

10.  There is no clear record of the result, however, legacy records system dates indicate the Army Discharge Review Board reviewed the applicant's case on 7 October 1981.  This action did not result in an upgrade of the applicant's discharge.

11.  The applicant provides a letter from a clinical psychologist from the Ohio Department of Rehabilitation and Correction, Chillicothe Correctional Institution, dated 16 February 2011.  The clinical psychologist states he has worked with the applicant for several years during which time the applicant has been attending a weekly PTSD group for veterans.  He states the applicant developed severe alcoholism, at least in part, to cope with his lingering wartime psychiatric injuries.  He requests the applicant receive benefits upon his release from prison.

12.  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.  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 discharge (HD) or a general discharge (GD) is authorized, a discharge under other than honorable conditions (UOTHC) is normally considered appropriate.  At the time of the applicant's discharge, a UD Certificate was issued for members separating UOTHC.

13.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge because he suffers from PTSD has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason for and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant's DD Form 214 confirms he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In connection with this type of discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record confirms he accrued 581 days of time lost due to being AWOL and he had an extensive disciplinary history both prior to and subsequent to his service in the RVN.  It further shows he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in receiving a punitive discharge.

5.  The UD the applicant received was normal and appropriate under the regulatory guidance in effect at the time.  There is no evidence of record showing the applicant suffered from PTSD or any other medical or mental condition that contributed to the misconduct that resulted in his UD as evidenced by the Standard Form 88 in his record.  Based on his misconduct, the UD he received was normal and appropriate under the regulatory guidance in effect at the time and there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

6.  The applicant's honorable service from 19 February 1968 through 7 March 1970 and from 26 April through 28 June 1971 is properly documented in DD Forms 214 issued for those periods of active duty service.

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 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)                                         AR20110014984



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ABCMR Record of Proceedings (cont)                                         AR20110014984



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