IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110017937 


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 general discharge to honorable, that the reason for separation be changed to medical, and restoration of his rank to specialist four (SP4)/E-4.

2.  He states he had a difficult time adjusting to the "real world" after spending almost a year in severe and heavy combat in Vietnam.  There was no recognition of his severe depression or the causes for it.  He was not offered any medical treatment or counseling so he turned to alcohol and went absent without leave (AWOL).  He returned from being AWOL on his own, was reduced in rank from SP4 to private/E-1, and was given a general discharge.  He states he now realizes he then suffered from and continues to suffer from combat-related post-traumatic stress disorder (PTSD).  

3.  He provides his:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
* page 4 of his DA Form 20 (Enlisted Qualification Record)
* Department of Veterans Affairs (VA) Rating Decision
* VA Letter 


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.  His military records show he enlisted in the Regular Army on 1 August 1968.  He completed training and was awarded the military occupational specialty of 11C (Indirect Fire Infantryman).  The highest rank/grade he held was SP4/E-4.

3.  His DA Form 20 shows he served in the Republic of Vietnam (RVN) during the period 16 May 1969 to 13 April 1970.  His records show he was awarded the Bronze Star Medal during this period.

4.  He accepted nonjudicial punishment (NJP) on 28 September 1970 for being AWOL from 10-11 September 1970 and from 20-25 September 1970.

5.  On 23 November 1970, he was convicted by a special court-martial, pursuant to his pleas, of being AWOL from on or about 6 October to on or about 9 October 1970 and from on or about 19 October to on or about 2 November 1970.  He was sentenced to reduction in grade to private/E-1 and to perform hard labor for 45 days.

6.  On 8 December 1970, court-martial charges were preferred against him for:

* on 29 November, 1 December, 6 December, and 7 December (twice) failing to go at the time prescribed to his appointed place of duty
* being AWOL from on or about 8 December 1970 to on or about 13 January 1971

7.  On 16 February 1971, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with military counsel of his own choice.  He was advised of the basis for his contemplated trial by court-martial under the circumstances which could lead to a bad-conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

8.  He further acknowledged he understood that if his discharge request were accepted, he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He chose not to submit a statement on his own behalf.

9.  On 25 February 1971, an intermediate (brigade) commander recommended he be given an Undesirable Discharge Certificate. 

10.  On 9 March 1971, a psychiatrist in the rank of major certified there was no indication of psychosis or severe neurosis in the applicant at that time.  The applicant was determined to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had mental capacity to understand and participate in board proceedings.

11.  A medical statement, dated 12 March 1971, indicated a complete review of physical and mental examinations failed to reveal any defects which would have contributed to the misconduct of the applicant.

12.  The separation authority approved the applicant's discharge under provisions of chapter 10, Army Regulation 635-200.  He directed the applicant be given a General Discharge Certificate.

13.  On 18 March 1971, the applicant was discharged under provisions of chapter 10, Army Regulation 635-200, for the good of the service, with his service characterized as under honorable conditions.  He completed 2 years, 2 months, and 29 days of net active service.  His DD Form 214 shows he had approximately 140 days of time lost during five periods of absence.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10, in effect at the time, stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) 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 would normally be furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The record does not show he suffered from any medical conditions that contributed to his misconduct.

2.  Court-martial charges were preferred against him for five times failing to go at the time prescribed to his appointed place of duty and for being AWOL.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  He received NJP and he was convicted by a special court-martial for two periods of AWOL.  He had a total of approximately 140 days of time lost.

4.  This serious misconduct normally warranted a discharge under other than honorable conditions.  

5.  It appears he may have been given a general discharge due to his record of service in Vietnam instead of the normal undesirable discharge given to Soldiers discharged for the good of the Service.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

6.  His special court-martial conviction sentence included his reduction to private E-1.  There is no evidence of error in regard to this judicial action.

7.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable discharge, changing the reason for his separation to medical, or for restoration of his rank to SP4.

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)                                         AR20110017937



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ABCMR Record of Proceedings (cont)                                         AR20110017937



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