IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120013124 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states he had no other recourse than to go absent without leave (AWOL) in 1978 because he was suffering from the symptoms of post-traumatic stress disorder (PTSD) that was not recognized at the time.  The applicant further states:

	a.  Upon returning to Fort Hood, TX, from his service in the Republic of Vietnam from January to December 1966, he noticed a little change in his attitude.

	b.  Upon returning to Fort Hood from his tour of duty in Korea from December 1968 to January 1970, his attitude worsened and he began to experience nightmares.

	c.  Upon returning from his tour of duty in Korea from June 1974 to June 1975, he was stationed at Fort Carson, CO, and he began to drink heavily, causing a strain on his family.  As his difficulty sleeping, nightmares, and drinking increased, his wife ultimately divorced him.

	d.  After reenlisting in December 1975, he remarried in 1977 and was again reassigned to Korea in April 1977.  After 6 months he came home on leave and discovered his wife had been diagnosed with cancer.


	e.  The stress of going back to Korea while trying to care for his family overwhelmed him with frequent panic attacks and depression.  After being deployed three times in 8 years, he decided he would not return to Korea.

	f.  He now believes that what he suffered from all those years was PTSD as diagnosed by the Department of Veterans Affairs (VA).  He is truly sorry for not completing his obligation to the U.S. Army and asks for clemency.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 6 June 1978
* a self-authored statement
* two character reference letters, dated 9 and 12 June 2012

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 4 February 1965.  He completed training and he was subsequently transferred to the Republic of Vietnam.  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.  However, he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

3.  Special Court-Martial Order Number 43, issued by Headquarters,
1st Battalion, 27th Infantry Regiment, dated 3 December 1965, shows he pled guilty and he was found guilty of sleeping at his post as a sentinel on
15 November 1965.  He was sentenced to PV1/E-1, confinement at hard labor for 3 months, and a forfeiture of pay for 3 months.


4.  The applicant further accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 25 November 1974, for being derelict in the performance of his duties
* 28 June 1976, for failing to prepare his living quarters and communications shop for inspection and for failing to go at the time prescribed to his appointed place of duty (company formation)
* 20 September 1976, for being derelict in the performance of his duties 

5.  On 16 November 1978, charges were preferred against the applicant for being AWOL for the period 28 March through 8 November 1978.

6.  On 17 November 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He submitted a statement in his own behalf requesting a more favorable discharge citing his service in the Republic of Vietnam, the awards and decorations he had received, and with the exception of two reports, his outstanding enlisted evaluation reports.

8.  On 29 November 1978, the separation authority approved the applicant's request for discharge and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 6 December 1978, the applicant was discharged accordingly.  He completed 2 years, 4 months, and 7 days of net active service this period with 225 days of time lost.  He completed 13 years, 2 months, and 21 days of total active service.

9.  His record is void of any evidence and he has not provided any evidence that shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.
10.  The applicant provides two letters of support with his request.  These individuals attest to his good character and excellent post-service conduct.

11.  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.

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

	a.  Chapter 10 provides, in pertinent part, 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 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 contention that his under other than honorable conditions discharge should be upgraded due to suffering from PTSD was carefully considered.

2.  His record is void of any evidence and he has not provided any evidence that shows he was ever diagnosed with or treated for PTSD or any other mental condition while serving in the Army.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

6.  Notwithstanding the supporting statements provided by the applicant, post-service conduct alone is not a basis for upgrading a discharge.  

7.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading the applicant's discharge 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 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)                                         AR20120013124



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ABCMR Record of Proceedings (cont)                                         AR20120013124



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