ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110022185 


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.

2.  The applicant states his discharge should be upgraded because he was suffering from untreated characteristics of post-traumatic stress disorder (PTSD) after serving in Vietnam from 21 May 1970 to 22 April 1971.  

3.  In support of his request, the applicant provides a PTSD Evaluation, Medical Records-Progress Notes, and a Case Closing Summary from the Veterans Outreach Center in Spokane Valley, WA.

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 records show he enlisted in the Regular Army, at age 17, on 31 October 1969, for 3 years. He held military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  He served in Vietnam from 21 May 1970 to 22 April 1971.  On 9 June 1971, he was assigned to Fort Riley, Kansas.

4.  On 23 July 1971, a summary court-martial convicted the applicant of being absent without leave (AWOL) from 16 June to 5 July 1971.  He was sentenced to a forfeiture of $120.00 pay for 1 month, restriction for 60 days, and reduction to private first class/E-3 (suspended for 90 days).

5.  On 1 September 1971, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 30 August to 1 September 1971.

6.  On 9 September 1971, the suspended portion of the applicant's court-martial sentence was vacated and the applicant was reduced to pay grade E-3. 

7.  The applicant also had lost time on various other dates between 1971 and 1972.

8.  On 2 December 1971, a Bar to Reenlistment was approved against the applicant for the following reasons:

   a.  Receiving a summary court-martial for being AWOL.

   b.  Receiving an Article 15 for being AWOL.

   c.  Receiving several counseling statements on the following dates:

* 6 July 1971-Being AWOL (forwarded for court-martial)
* 15 September 1971-Being AWOL-Article 15
* 3 October 1971-Haircut and personal appearance
* 6 October 1971-Haircut and personal appearance
* 14 October 1971-Did not want to perform his duty
* 2 November 1971-His personal appearance

   d.  His record contains documentation that shows he acknowledged he had been counseled and received a copy of the commanding officer’s certificate of unsuitability for reenlistment.  He was advised concerning the type of discharge he could receive as a result of this action and he declined to submit a statement in his own behalf.

9.  The complete facts and circumstances of the applicant's discharge processing are not available for review with this case.  However, the available evidence includes:

	a.  Special Orders Number 152, issued by the U.S. Army Training Center, Infantry and Fort Ord, CA, dated 31 May 1972, which show he was reassigned to the U.S. Army Transfer Point, Fort Ord, CA for separation processing 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, with a reporting date of 1 June 1972.

   b.  A duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 1 June 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  This form also shows he completed 2 years, 2 months, and 18 days of creditable active service, and he had 163 days of lost time. 

10.  He provides medical documents from the Department of Veterans Affairs (VA), dated 20 April 2011, which show the applicant was diagnosed with PTSD many years after he was discharged.

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

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 or general discharge is authorized, an undesirable discharge was considered appropriate at the time the applicant was discharged.

	a.  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.

	b.  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 contends that his discharge should be upgraded because he believes he was suffering from untreated characteristics of PTSD, which could have contributed to his actions while in the Army.  However, the available evidence shows he was diagnosed with PTSD many years after he was discharged.  The available evidence does not show he was diagnosed with PTSD, or that he was having problems that interfered with his ability to perform his military duties, or that PTSD or any other mental condition was the underlying cause for the misconduct that led to his discharge.

2.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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.
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ABCMR Record of Proceedings (cont)                                         AR20110022185



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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