IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120004701 


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 under honorable conditions discharge to an honorable discharge, to have the instances of absence without leave (AWOL) removed from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and restoration of his rank/grade to specialist four (SP4)/E-4.

2.  The applicant states he was a proud Soldier who volunteered for duty in Vietnam.  Upon his redeployment, he started to have trouble with post-traumatic stress disorder (PTSD) and depression.  After recently being diagnosed with moderate recurring PTSD and depression by the Department of Veterans Affairs (VA), he believes if it wasn’t for PTSD and depression the events which led to his general discharge would not have occurred.  He further states he does not believe PTSD was as greatly understood back then as it is today and he apologizes for the past mistakes he has made.   

3.  The applicant provides:

* self-authored statement
* DD Form 214
* DA Form 20 (Enlisted Qualification Record)
* VA Rating Decision
* DD Form 4 (Enlistment Contract – Armed Forces of the United States)
* 28 pages of his medical and dental records
* letter from a VA Licensed Supervising Pyschologist

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 24 September 1970 and he held military occupational specialty 64C (Truck Master).  His record shows he served in the Republic of Vietnam during the period 22 August 1971 through 4 April 1972.  The highest rank/grade he attained while serving on active duty was SP4/E-4.  However, he held the rank/grade of private first class (PFC)/E-3 at the time of separation.

3.  On 28 July 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL for the period 15 through 23 July 1972.  As a result, he was reduced from the rank/grade of SP4/E-4 to PFC/E-3.
 
4.  On 20 December 1972, charges were preferred against the applicant for being AWOL during the periods 15 through 22 August and 28 August through               14 December 1972.

5.  His record contains a Federal Bureau of Investigations report which indicates he was in civil confinement from 19 October 1972 until he was presumably returned to military control on 14 December 1972.  The report states the applicant was held by the Sheriff’s Office, Great Bend, KS, in lieu of bond on a charge of statutory rape.  No details are in his record and the resolution of the incident is unknown.

6.  On 20 December 1972, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge 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.  In his request for discharge, he acknowledged:

* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life

7.  He elected to submit a statement in his own behalf.  He indicated he would like to be considered for a general discharge and requested the commander take into consideration his previous excellent conduct ratings and his 8 months service in Vietnam.  He further stated upon his return from Vietnam he found it very difficult to cope with military life.

8.  On 20 December 1972 and 18 January 1973 respectively, his immediate and intermediate commander recommended approval of his request for discharge with the issuance of an undesirable discharge.

9.  On 11 January 1973, the applicant underwent a separation medical evaluation and there was no evidence of a diagnosis or treatment for PTSD or any other mental condition at the time of separation.

10.  On 23 January 1973, the separation authority approved the applicant's request for discharge and directed issuance of a General Discharge Certificate.    On 2 February 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 2 years and 2 days of total active service with 127 days of lost time. 

11.  On 25 April 1980, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied. 

12.  He provides a letter from a VA licensed psychologist who appeals for the applicant’s discharge to be upgraded and further opines the applicant’s experiences in Vietnam, as well as his behavioral history before and after Vietnam, most likely led to his discharge and were a direct reflection of the PTSD symptoms he was experiencing at that time, and continues to experience today.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who 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 at any time after court-martial charges are preferred.  Commanders would ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will 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 will normally be furnished to an individual who was discharged for the good of the Service.

14.  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.  The applicant's request to upgrade his general discharge to an honorable discharge, to have the instances of AWOL removed from his DD Form 214, and to restore his rank/grade to SP4/E-4 has been carefully considered and was determined to lack merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He voluntarily, willingly, and in writing requested discharge from the Army 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.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant alleges that he suffered from PTSD during his service in the Republic of Vietnam.  Notwithstanding the opinions of his psychologist 40 years later, there is no evidence in his military records and the applicant has not provided sufficient evidence which shows he was ever diagnosed with PTSD or any other mental condition at the time of his discharge.  Additionally, there is no evidence which shows his misconduct was a direct result of the alleged condition.  Therefore, this argument is not sufficient to support his request to upgrade his discharge, remove his instances of AWOL from his records, or restore his rank.
4.  The applicant's record reveals he was AWOL for 127 days.  Based on this record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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

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)                                         AR20120004701





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ABCMR Record of Proceedings (cont)                                         AR20120004701



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