IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110022462 


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 to honorable.

2.  The applicant states:

	a.  When he was home on leave he injured himself, but he was told to return to Vietnam.  He had developed post-traumatic stress disorder (PTSD) and he could not physically or mentally protect himself because of his foot injury and PTSD.  He was unable to force himself to go back to Vietnam without being able to walk.

	b.  He barely stayed alive while he was completely healthy.  He explained that he did not care to go back to Vietnam but would if they could just wait until he was healed.  He should not be punished because he could not endure the stress physically or mentally.

	c.  He did not realize his character of discharge prevented him from obtaining Department of Veterans Affairs (VA) benefits.

3.  The applicant provides:

* three letters of support
* an undated letter from the Buchanan General Hospital
* VA Progress Notes, dated 28 June 2011
* his 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 was inducted into the Army of the United States on 20 May 1970.  He completed training and was awarded military occupational specialty 11C (infantry indirect fire crewman).  He served in Vietnam from 15 October 1970 to 7 May 1971.

3.  Records show he was absent without leave (AWOL) from 8-26 May 1971 and from 1 June 1971 to 6 January 1972.

4.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his discharge orders and DD Form 214 show he was discharged for the good of the service in lieu of trial by court-martial on 18 February 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 1 year, 1 month, and 4 days of creditable active service with 239 days of lost time.

5.  There is no evidence of record which shows he was diagnosed with PTSD or a foot injury prior to his discharge.

6.  He provides VA documentation, dated 28 June 2011, which shows he was diagnosed with chronic PTSD.

7.  He provides letters from his mother and two friends who attest that he injured his foot when he was home on leave from Vietnam in 1971.

8.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 or offenses 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.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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 he was AWOL because he injured his foot while on leave from Vietnam.  In support of his claim, he provided three letters of support.  However, there is no evidence of record which shows he was diagnosed with a foot injury prior to his discharge on 18 February 1972 or told his chain of command or anyone else in the Army that he injured his foot.

2.  He contends he developed PTSD while serving in the Army.  However, there is no evidence which shows he was diagnosed with PTSD prior to his discharge on 18 February 1972.  The VA documentation he provided shows he was diagnosed with PTSD in June 2011.

3.  A discharge is not changed for the purpose of obtaining VA benefits.

4.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge during his service.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his character of service was commensurate with his overall record of service in the Army.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110022462



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ABCMR Record of Proceedings (cont)                                         AR20110022462



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