IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120008899 


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 discharge to general under honorable conditions.

2.  The applicant states that in Vietnam he suffered from major post-traumatic stress disorder (PTSD) and major depression from constant enemy fire.

3.  The applicant provides letters from a city official and his minister and a notarized letter from a friend.

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 20 years old with a 10th grade education when he was  inducted and entered active duty on 23 August 1966.

3.  Notwithstanding nonjudicial punishments (NJPs) under Article 15 Uniform Code of Military Justice for two 1-week absences without leave (AWOLs), he completed training as a light vehicle driver.  He then completed a full tour of duty in Vietnam.  During that period he served without a discreditable incident of record, was advanced to pay grade E-4, and earned “excellent” conduct and efficiency ratings.

4.  He returned to the United States on 28 March 1968, reported to his new duty station on 15 May and commenced a series of AWOLs on 28 May 1968.   In January 1969, he pled guilty before a general court-martial to being AWOL from 28 May to 18 June, 10 July to 7 September, 9 September to 24 October,           30 October to 5 December and 6 to 12 December 1968.  The sentence, which included confinement for 6 months but not a punitive discharge, was adjudged on 28 January and approved on 25 February 1969.  The applicant was AWOL again on 21 March 1969.

5.  He was apprehended on 5 December 1973.  When charges were preferred he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized.  He acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for benefits administered by the Veterans Administration.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

6.  His personal statement at that time said he detested the military, his conscience would not let him participate in any Army activity, and if he were returned to duty he would go AWOL again. 

7.  The chain of command recommended approval of the applicant's request and separation with a discharge under other than honorable conditions.  The separation authority approved the applicant's voluntary request and directed his discharge under other than honorable conditions.



8.  On 19 February 1974, the applicant was so discharged.  He had completed 2 years and 1 month, of creditable service and had 1,947 days lost time. 

9.  On 30 May 1975, the Army Discharge Review Board (ADRB) considered the applicant's request to upgrade his discharge including his assertions that the pressures of Vietnam had forced him to take drugs and he came home so befuddled by drugs that he didn’t know right from wrong.  The ADRB denied his request.

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

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b. Paragraph 3-7a states 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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  It is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  In support of his application the applicant submitted:

	a.  A two-page personal statement to the effect that:

		(1)  His work in Vietnam was very dangerous.  He had to do all the work of filling the tanker trucks.  He saw other truckers killed and lived in constant fear of being blown up by mortar attack or killed in an ambush.  Shortly after he arrived in Vietnam his cousin was killed.  He was only 18 years old.  



		(2)  This had a powerful effect upon him, he suffered survivor guilt and nightmares.  He came to believe that the war was unjustified.  He thought we did not belong there, but he simply stuffed his feelings about everything.

		(3)  When he returned to the United States he had only a short time left to serve, but he just could not stick around.  The way we were treated as Soldiers made him sick.  The boredom started to eat away at him, "and all that BS that I had stuffed away (not only the death of my cousin but the death of 68,000 other soldiers) and the guilt of why not me?"  He needed help but didn't know who or how to ask so he ran away.  AWOL became a pattern.  He went to Canada where he fell in love.  It became easier to stay away as the war became more and more controversial.   

		(4)  By 1973 the war was pretty much done and the consequences of what our country had done became known.  "Maybe now I would get a fair deal in what I had done.  

		(5)  He is now 65 years old and facing the consequences of being on the ground.  The PTSD is real and haunts him, and he thinks he has symptoms from Agent Orange.  He has lived in the same community for 35 years and been the public works director for over 20 years.  He has raised two children and been an asset to the community and his church.

	b.  The City Recorder wrote a letter of support stating that she has worked with the applicant for seven-and-a-half years.  He is a man of faith and lives accordingly.  He shares the word of God with others and is a good family man, a husband, father, and grandfather.   After retiring as director of publics works he continues to work part time.  This letter proved more difficult to write than she thought it would be because there are so many things positive things to say about him.

	c.  The applicant's minister writes that he is a great family man.  He is also instrumental in building relationships both inside and outside the church.  They have talked about the applicant going AWOL and the applicant still feels he did the right thing under the circumstances.  He would trust the applicant with his life.  The applicant deserves to have an honorable discharge.

	d.  A friend who has known the applicant for 43 years states they shared the same cell in the stockade at Fort Ord, California.  They talked a lot about God and the dilemma the applicant had to face.  He found it hard to understand how a 


person could soldier-on and do one’s duty and then suddenly just come apart.  He believes that Vietnam was the cause of the applicant's current health problems.  The applicant paid his dues and should be entitled to help.

12.  The Manual for Courts-Martial, Table of Maximum punishments shows that the punishment for desertion (absence with intent to remain away permanently) that is terminated by apprehension includes a punitive discharge and up to two years confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for discharge under the provisions of chapter 10, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid the court-martial and punitive discharge he might have received.  Thus, his misconduct and his actions to avoid the consequences became the determining factors in the characterization of his service.

2.  The applicant had demonstrated the capacity for honorable service.  Neither drug addiction nor matters of conscience are defenses or excuse unacceptable behavior.  There are and were acceptable ways of dealing with such problems but running away to avoid duty was never one of them. 

3.  The applicant's turning around and leading a respectable law-abiding life is noted and acknowledged as is his performance of duty in Vietnam but such matters only further demonstrate that the applicant could do right when he motivated himself sufficiently to do so.

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)                                         AR20120008899





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ABCMR Record of Proceedings (cont)                                         AR20120008899



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