IN THE CASE OF:	  

		BOARD DATE:  21 February 2012

		DOCKET NUMBER:  AR20110016349 


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 a change to his discharge status.  

2.  The applicant states his first tour of service ended in an honorable discharge (HD) and his second tour ended in his receiving an under other than honorable conditions (UOTHC) discharge due to his Post Traumatic Stress Disorder (PTSD) condition he suffered from as a result of his service in the Republic of Vietnam (RVN).  

3.  The applicant provides a Congressional Inquiry with Statement in support of Claim (VA Form 21-4138) with 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 record shows the applicant initially entered active duty on 16 June 1969, and was trained in and awarded military occupational specialty (MOS) 11E (Armor Crewman).  He served for 9 months and 13 days until 30 March 1970, at which time he was honorably discharged for the purpose of immediate reenlistment.  On 31 March 1971, he reenlisted for 3 years.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was advanced to private first class/E-3 on 2 January 1970, and that this is the highest rank he attained while serving on active duty.  It also shows he served in the RVN from 3 January 1970 through 2 January 1971.  His record documents no acts of valor or significant achievement.  His disciplinary history includes his accrual of 186 days of time lost due to three separate periods of being absent without leave (AWOL) between 30 June 1969 and 22 November 1970.  

4.  On 5 November 1970, the applicant underwent a psychiatric evaluation.  The examining psychiatrist while indicating the applicant suffered from a character and behavior disorder marked by social inadaptability prior to and during his tour in the military, found no evidence of a mental disease, defect or derangement sufficient to warrant separation processing through medical channels.  He confirmed the applicant was capable of distinguishing right from wrong and to adhere to the right, and was responsible for his actions.  The examining psychiatrist documented no evidence of PTSD and the record is void of any medical treatment records or other documents indicating the applicant suffered from any disqualifying physical or mental condition at the time of his discharge. 

5.  On 24 November 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for three specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL during three separate periods between 3 May and 21 October 1970.  

6.  On 14 January 1971, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant confirmed his understanding that if his request for discharge were approved, he could receive an undesirable discharge (UD).  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.
7.  On 9 February 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to private/E-1.  On 24 February 1971, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 2 months, and 
3 days of creditable active service and had accrued 186 days of time lost due to AWOL at the time of his discharge.  

8.  On 10 October 1972, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's record of service and the issues he presented, found the applicant's discharge was proper and equitable and denied his appeal for a change to his discharge status.  

9.  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 an UD was issued for members separating UOTHC.  

10.  Paragraph 3-7a of the same regulation 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.  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's request for a change in his discharge status because he was suffering from PTSD at the time and continues to suffer from this condition has been carefully considered.  However, while it is unfortunate if the applicant is suffering from PTSD, there is no evidence of record to support his claim he was suffering from any unfitting physical or mental condition at the time of his discharge processing that would have supported his separation processing through medical channels.  In fact, the psychiatric evaluation completed at the time confirmed he suffered from no disqualifying mental condition and that he had the ability to distinguish right from wrong and to adhere to the right.  
2.  The evidence of record confirms the applicant was charged with the commission of offenses 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.  

3.  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.  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 and it does not support an upgrade to an honorable or a general discharge at this late date.

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)                                         AR20110016349



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ABCMR Record of Proceedings (cont)                                         AR20110016349



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