BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011523 


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 undesirable discharge.

2.  The applicant states:

* He was discharged due to drug use
* The reason he did drugs was due to the war and he couldn't handle the killing
* He has severe Post-Traumatic Stress Disorder (PTSD) and other war related issues
* He needs veteran-related help
* He can't sleep or function
* He can't hold a job

3.  The applicant provides a letter from his physician. 

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 20 July 1970 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 67N (UH-1 helicopter repairman).  He arrived in Vietnam on                15 February 1971.  

3.  Records show he tested positive for heroin on 7 November 1971 and he was admitted to the Drug Treatment Center in Vietnam.  He was diagnosed with "Improper use of heroin not involving addiction or dependency." 

4.  He departed Vietnam on 10 February 1972.  

5.  On 3 May 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 3 April 1972 to 2 May 1972.

6.  On 16 May 1972, NJP was imposed against him for being AWOL from 10 May 1972 to 15 May 1972.

7.  He went AWOL on 13 August 1972 and returned to military control on 
14 September 1972.  On 13 October 1972, charges were preferred against him for the AWOL period.

8.  He went AWOL again on 24 October 1972 and returned to military control on 2 January 1973.  On 12 January 1973, charges were preferred against him for the AWOL periods.  Trial by special court-martial was recommended.

9.  On 10 January 1973, after consulting with counsel, the applicant submitted a request for 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.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he enlisted on 20 July 1970 for 3 years
* he has 24 months good time and 6 months bad time
* he has 2 Article 15's
* he is currently pending charges for AWOL
* he feels he contributes nothing to the Army and he gets nothing out of the Army except trouble
* he will continue to get out of the Army legally or illegally
* he has been convicted of grand larceny

10.  On 2 February 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

11.  On 7 February 1973, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 
2 years, 1 month, and 5 days of total active service with 163 days of lost time.

12.  There is no evidence which shows he was diagnosed with PTSD or any other mental condition prior to his discharge.

13.  He provided a letter, dated 15 February 2012, from his physician who attests:

* the applicant suffers from PTSD as a result of his time spent in the Vietnam War
* his condition has been sub-optimally treated in the health system due to lack of resources that address the needs of a PTSD patient
* they have tried antidepressants and sleep aids with little improvement in his symptoms 
* as a way to self medicate, he has become addicted to alcohol
* he has developed signs of liver damage as a result of the alcohol use
* he would benefit from a program that can address both his PTSD and alcohol addiction  

14.  On 1 August 1981, the Army Discharge Review Board denied his request for an honorable discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

16.  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.

17.  Army Regulation 635-200, 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 contends he was discharged due to drug use and he turned to drugs as a result of severe PTSD from his service in Vietnam.  It is acknowledged he used heroin while serving in Vietnam but evidence shows he voluntarily requested discharge and he was discharged for the good of the service in lieu of trial by court-martial.  There is no evidence of record and he provided no evidence which shows he was diagnosed with PTSD or any other mental condition prior to his discharge.  

2.  He wants his discharge upgraded so he can obtain medical benefits.  However, a discharge is not changed for the purpose of obtaining benefits from the Department of Veterans Affairs.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

4.  His record of service included two NJPs and 163 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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 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)                                         AR20120011523





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ABCMR Record of Proceedings (cont)                                         AR20120011523



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