IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110023633 


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, in effect, that his general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable.

2.  The applicant states:

* he was discharged without Department of Veterans Affairs (VA) benefits
* he was suffering from untreated post-traumatic stress disorder (PTSD) from his combat experience in Vietnam
* he was at Fort Lewis for a training exercise and could not sleep because of disturbing dreams and nightmares
* he was in numerous combat situations
* the most difficult part was dealing with loss of life from poor leadership
* he started to have problems when he heard of a high school friend who had been killed in Vietnam
* he started to make poor choices
* he attempted suicide
* he has gotten help for his PTSD from the VA because of his prior honorable discharge
* he applied for disability and his request was denied because he was absent without leave (AWOL)

3.  The applicant provides:

* service personnel records
* VA documentation
* DD Form 214 (Report of Separation from Active Duty)

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 enlisted in the Regular Army on 3 September 1968 for a period of 2 years.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).  He arrived in Vietnam on 29 January 1969.  On 4 May 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 5 May 1969 for a period of 3 years.

3.  On 9 July 1969, he was convicted by a special court-martial of two specifications of failing to go at the time prescribed to his appointed place of duty (reveille and work call formations) and disobeying three lawful commands.  He was sentenced to be confined at hard labor for 6 months and a forfeiture of $82.00 pay for 6 months.  On 17 July 1969, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 months and forfeiture of $82.00 pay per month for 3 months.

4.  He returned to the United States on 27 January 1970.

5.  On 12 May 1970, he was AWOL and returned to military control on 11 February 1971.

6.  His record is void of the specific facts and circumstances surrounding his discharge.  However, the SDRP proceedings indicate he requested discharge in lieu of trial for being AWOL.  Discharge orders and his DD Form 214 show he was issued an undesirable discharge on 26 March 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 1 year, 9 months, and 13 days of creditable active service with 284 days of lost time.

7.  A DD Form 261 (Report of Investigation/Line of Duty and Misconduct Status), dated 9 April 1971, shows the applicant attempted suicide (laceration of both wrists) on 22 March 1971.

8.  There is no evidence of record which shows he was diagnosed with PTSD or any other mental disorder prior to his discharge on 26 March 1971.

9.  He provides VA documentation which shows:

* he was diagnosed with PTSD in 2011
* the VA denied service connection for his PTSD 

10.  On 1 August 1973, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.

11.  On 13 December 1977, the applicant's records were reviewed under the provisions of the SDRP and a general discharge was directed following review under the provisions of Public Law 95-126.  On 28 April 1978, the ADRB re-reviewed the applicant's case as required by Public Law 95-126 and affirmed the SDRP discharge upgrade to general under honorable conditions.

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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining VA benefits.

2.  The applicant contends his actions were the result of PTSD due to his combat service in Vietnam.  However, there is no evidence that shows he was diagnosed with PTSD or any other mental disorder prior to his discharge.

3.  It appears he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  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 characterization of service was commensurate with his overall record of service.

4.  His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review on 13 December 1977.  On 28 April 1978, the general discharge was affirmed as required by Public Law 95-126.

5.  His record of service during his last enlistment included one special court-martial conviction and 284 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and does not warrant an upgrade.

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)                                         AR20110023633



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ABCMR Record of Proceedings (cont)                                         AR20110023633



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