IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010971 


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 an honorable discharge with restored benefits.

2.  He states he was diagnosed with post-traumatic stress disorder (PTSD) and the PTSD was the direct cause of his diminished capacity.  He recounts his service in Vietnam and describes incidents that occurred that still cause him nightmares.  He maintains that prior to his assignment in Vietnam he was a model Soldier, but after his return the difference in the war survival mode and stateside duty confused him.  He offers that his life has been in total disarray because of the mental anguish caused by his Vietnam experience.

3.  The applicant provides a self-authored statement and eight documents from the Federal Bureau of Prisons.

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 17 January 1967.  He served in Vietnam from 6 January 1968 to 2 January 1969.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on:

* 5 August 1968, for failing to go to his appointed place of duty and willfully disobeying a lawful order from a superior noncommissioned officer on 4 August 1968
* 3 March 1969, for being absent without leave (AWOL) from 24 February to 1 March 1969

4.  In May 1971, charges were preferred against him for being AWOL from 28 February 1970 to 23 April 1971.

5.  On 27 April 1971, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive an Undesirable Discharge Certificate and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received an undesirable discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  He elected to submit a statement in his own behalf.

7.  In his statement he said he was requesting a chapter 10 discharge because he was married and had three children.  He added, in effect, that he had a lot of financial obligations and the Army was hindering his ability to meet those obligations.  He stated that he had no intent or desire to serve in the Army and wanted to withdraw under any of the swiftest discharges.

8.  On 4 May 1971, the applicant underwent a physical examination and was cleared for separation.  A copy of his mental evaluation is not contained in his available file.

9.  On 14 May 1971, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed the issuance an Undesirable Discharge Certificate.

10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with an undesirable discharge characterized as under other than honorable conditions on 20 May 1971.  He completed 2 years, 9 months, and 12 days of active service with 118 days lost under Title 10, U.S. Code, section 972.

11.  His military record is void of any evidence that shows he was diagnosed with PTSD.

12.  On 19 June 1986, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 22 April 1987, the ADRB denied his request for a discharge upgrade stating the board determined he was properly and equitably discharged.

13.  The applicant provided several documents from the Federal Bureau of Prisons Psychiatry Clinic.  The documents show he was diagnosed with PTSD from his initial medication management and treatment review on 22 October 2002.  The documents further show he continued treatment at the psychiatry clinic and was seen on seven additional visits.

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

	a.  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.  A discharge under other than honorable conditions would normally be directed for an individual who was discharged for the good of the service.

	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 argues, in effect, that his discharge should be upgraded because his indiscipline was based on suffering from PTSD which either resulted from or occurred during his service in Vietnam.  There is no evidence and he has not provided any evidence to show PTSD caused his misconduct and/or that he sought counseling/medical treatment to correct his problems during his military service.  The fact that he provides documents from the Federal Bureau of Prisons Psychiatry Clinic that indicate he was diagnosed and being treated for PTSD 30 years later is not sufficient evidence for upgrading his discharge.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record also shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

3.  His record of service included two NJPs and 118 days of lost time.  Based on his record of indiscipline, his service clearly 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 or a general discharge.

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)                                         AR20120010971



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ABCMR Record of Proceedings (cont)                                         AR20120010971



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