IN THE CASE OF:	  

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120010425 


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 (UD).  

2.  The applicant states his concern over going to Vietnam caused him to begin drinking heavily which resulted in his going absent without leave (AWOL).  He states after he went and came back it got worse.  He also outlines combat experiences in Vietnam. 

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim) and VA Form 21-0781 (Statement in Support for Service Connection for Post-Traumatic Stress Disorder (PTSD)) in support of his request. 

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 record shows he initially enlisted in the Regular Army on 
24 September 1963, and was trained in and awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).  He served for 2 years, 
5 months, and 22 days until being honorably discharged on 15 March 1966 for the purpose of immediate reenlistment.  

3.  On 16 March 1966, he reenlisted for 4 years and began the period of enlistment under review.  His record shows he served in the Republic of Vietnam (RVN) from 8 April 1968 to 7 April 1969.  It further shows he earned the following awards during his active duty tenure:

* Mechanic and Driver Badge
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam (RVN) Campaign Medal 
* Army Good Conduct Medal 

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 19 July 1966 and 
22 July 1969 for offenses that included driving under the influence (DUI) of alcohol, failure to go to his appointed place of duty at the time prescribed, and AWOL.  It also includes a summary court-martial (SCM) conviction on 
29 November 1967 for two specifications of violating Article 86 of the UCMJ by being AWOL from 9 to 12 July 1967 and from 11 August to 27 October 1967.  

5.  The record is void of any documents or medical treatment records that indicate the applicant was suffering from a disabling medical or mental condition that warranted his separation processing through medical channels at the time of his discharge processing.  

6.  On 13 August 1969, the applicant departed AWOL from his unit at Fort Sill, Oklahoma.  He was dropped from the rolls (DFR) of the organization on 
13 September 1969, and remained away for 211 days until returning to military control at the Special Processing Detachment (SPD), Fort Riley, Kansas, on 
12 March 1970.  

7.  On 17 March 1970, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 13 August 1969 to on or about 12 March 1970.  



8.  On 14 April 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant elected not to submit statements in his own behalf.  

9.  On 29 April 1970, the separation authority approved the applicant’s request for discharge and directed the applicant be reduced to the lowest enlisted grade and that he be issued an UD Certificate.  On 8 May 1970, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time on file shows the applicant was discharged, in the rank of private/E-1, after completing 2 years, 
5 months, and 22 days of creditable active military service during the enlistment period and accruing 300 days of time lost due to AWOL. 

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

11.  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 discharge or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged a UD was considered appropriate.

	b.  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.

	c.  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’s request to upgrade his discharge because he is suffering the effects of PTSD due to his RVN service has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record and independent evidence submitted by the applicant fail to show he suffered from a disabling medical or mental condition at the time of his discharge processing.  His record does reveal a significant disciplinary history that covered the period prior to, during, and after his RVN service which includes his acceptance of NJP on five separate occasions, an SCM conviction, and accrual of 300 days of time lost due to AWOL.  His record documents no acts of valor or individual achievement during his active duty tenure, including during the period he served in the RVN.  

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - 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.  As a result, 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 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)                                         AR20120010425



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ABCMR Record of Proceedings (cont)                                         AR20120010425



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