BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012351 


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 honorable.

2.  The applicant states he served with honor and was promoted several times.  He earned medals while serving in the Republic of Vietnam (RVN).  However, he came home suffering from post-traumatic stress disorder (PTSD).  He asked to be discharged under the provisions of chapter 10, but he never had a psychiatric examination.  He states the effects of PTSD were not understood at the time.  He states he had a good and honorable record prior to returning to Fort Benning, Georgia.  That is when he starting showing errors in his judgment which were contrary to his normal behavior.  He states he has suffered all of his life with much anger, panic attacks, and depression.  He has been unable to achieve anything.  He also states he was too sick to respond when President Carter gave all Vietnam veterans amnesty.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 13 December 1968
* DD Form 214 effective 1 November 1971
* Fort Benning Form Letter 49 (FB FL 49) (Mental Hygiene Consultation Service Report), dated 23 September 1971



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.  On 22 January 1968, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 12A (Pioneer).  He was subsequently assigned for duty in the Federal Republic of Germany (FRG).

3.  On 5 August 1968, the applicant accepted nonjudicial punishment (NJP) for failing to report for guard duty.

4.  On 14 December 1968, the applicant reenlisted in the Regular Army.

5.  On 22 December 1968, the applicant departed the FRG for duty in the RVN.

	a.  On 13 March 1969, he was assigned to Company B, 31st Engineer Battalion.

	b.  On 10 May 1969, he was advanced to specialist four/pay grade E-4.

	c.  On 23 December 1969, he was promoted to specialist five/pay grade E-5.

	d.  On 25 February 1970, he departed the RVN for duty at Fort Benning, Georgia.

6.  On 14 April 1970, the applicant was assigned for duty with the 818th Engineer Battalion, Fort Benning, Georgia.

7.  On 9 July 1970, the applicant accepted NJP for being absent without leave (AWOL) from his unit and for dereliction of duties.

8.  On 27 October 1970, the applicant was convicted by summary court-martial of two specifications of AWOL and for failing to obey a lawful order from his commanding officer.

9.  On 28 October 1970, the applicant's commander recommended his bar to reenlistment.  The commander cited his two NJPs and summary court-martial.  On 6 November 1970, the appropriate authority approved the bar to reenlistment.

10.  On 24 November 1970, the applicant's battalion commander notified him that his performance of duty had not been up to standard for several months.  He was further informed that he was being transferred to another unit within the battalion to afford him with a new environment and opportunity for rehabilitation.

11.  On 16 August 1971, the applicant was convicted by a special court-martial of three specifications of AWOL.

12.  On 7 September 1971, charges were preferred against the applicant for violation of Article 95, Uniform Code of Military Justice (UCMJ) for unlawfully escaping from custody while on his way to the post stockade on 16 August 1971.

13.  FB FL 49, dated 23 September 1971, reports the applicant had not demonstrated having any psychiatric disease.  It further reported that a psychiatrist had not been available to examine the applicant.  A Medical Corps physician provided an examination and diagnosis of the applicant and declared him psychiatrically cleared for administrative action as deemed necessary by the command.

14.  A Standard Form 88 (Report of Medical Examination), dated 23 September 1971, states the applicant demonstrated no physical or mental defects warranting a medical disposition.  He was determined to be qualified for separation.

15.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 shows he was administratively discharged for the good of the service on 1 November 1971 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  His service was characterized as under conditions other than honorable.  He completed 3 years, 2 months, and 11 days of total creditable active duty and had 213 days of lost time.

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

17.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally 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.  

18.  Under the UCMJ, the maximum punishment allowed for violation of Article 95 for unlawful escape from custody is a punitive discharge and 1 year of confinement.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the applicant accepted NJP twice and was convicted by both a summary and special court-martial.  He was pending another court-martial at the time of his discharge.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's contention that his service was good and honorable prior to his return from the RVN is generally accepted as true and is reflected as honorable on his first DD Form 214.  However, he received NJP once while serving in the FRG prior to his duty in the RVN, indicating a propensity for disobeying authority.  Furthermore, the available evidence is insufficient for determining whether he had PTSD or any other mental condition after his return from the RVN or, if he did, whether such ailment was the proximate cause of his repeated misconduct.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20120012351



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ABCMR Record of Proceedings (cont)                                         AR20120012351



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