BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120017500


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, that his previously upgraded discharge be affirmed so he may obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states:

* his record shows he was diagnosed twice by psychologists as having "PVSD" (later referred to as post-traumatic stress disorder (PTSD))
* the Army Discharge Review Board (ADRB) rejected the diagnosis, no one really understood the severity of the effects of PTSD
* over the years the public has gained a better understanding of just how powerful PTSD is
* in today's military and civilian atmosphere a Soldier in such a situation returning from the war would not be treated the way he was

3.  The applicant provides numerous documents in support of his request, including:

* letters from the VA Regional Office in Nashville, TN, dated 29 September and 3 November 2011
* VA Form 21-4138 (Statement in Support of Claim), dated 8 October 2011, with 5 pages of notes attached 
* a letter from the VA Records Management Center, St. Louis, MO, dated 16 September 2010
* letters from the National Personnel Records Center (NPRC), St. Louis, MO, dated 10 December 2007 and 3 May 2010
* 2 pages of the ADRB's findings, attributed to Docket Number 
AD80-06670A
* letters from the ADRB, dated 8 July and 30 October 1980 
* a letter from the Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, dated 27 August 1979
* letters from the Honorable Jxxx Bxxxxx, his Member of Congress at the time, dated 16 August and 15 November 1976 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a translation of a General Order from the Armed Forces of the Republic of Vietnam, dated 17 December 1971
* an internet printout of information pertaining to the Battle of Landing Zone (LZ) Crystal on 5 June 1972 and the Battle of An Khe Pass on 11 April 1972
* 15 pages of typed notes regarding his recollections of his experience in the Republic of Vietnam, and how those experiences affected him after he returned home
 
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 25 March 1971.  He completed initial entry training and was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).  

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 4 September 1971 to 9 August 1972.  

4.  On or about 15 September 1972, upon his return from the Republic of Vietnam, he was assigned to Headquarters and Headquarters Company, 67th Signal Battalion, Fort Gordon, GA.
5.  On 11 September 1973, he was reported in an absent without leave (AWOL) status from 9 October 1973 until he surrendered to military authorities at Fort Gordon, GA on 22 March 1974.  

6.  On 25 March 1974, court-martial charges were preferred against him for the above period of AWOL, which equals 192 days.

7.  The applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ).  Subsequent to consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

8.  In his request for discharge he indicated he had not been subjected to coercion with respect to his request and he had been advised of the implications attached to his request.  He also indicated he understood by requesting discharge he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 1 April 1974, he underwent a separation physical.  Neither his Standard Form 88 (Report of Medical Examination) nor his Standard Form 93 (Report of Medical History) addresses the presence of mental health issues or a possible diagnosis of PTSD.  To the contrary, both forms clear him as medically fit, and his Standard Form 93 contains the entries "No Residual Disability" and "No Illness During Service."  The blocks for “nervous trouble of any sort,” “frequent trouble sleeping” and “Depression or Excessive worry” are checked “No.”  He authenticated this form with his signature, indicating he certified the accuracy of the information contained on the form, to the best of his knowledge.

10.  On 19 April 1974, the separation authority approved his request for voluntary discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200, and directed he receive an Undesirable Discharge Certificate.




11.  On 30 April 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 2 years, 6 months, and 24 days of creditable active service during this period (with 192 days of lost time), and he received an Undesirable Discharge Certificate.  

12.  On 10 January 1977, the ADRB denied his request for an upgrade of his under other than honorable conditions discharge.

13.  On 16 December 1980, the ADRB reconsidered his request for an upgrade of his under other than honorable conditions discharge and directed it be upgraded to a general discharge.  Accordingly, his original DD Form 214 was voided and he was reissued a DD Form 214 that shows he received an under honorable conditions (general) discharge.  

14.  He provides numerous pages of notes and e-mail regarding his recollections of his service, both during his service in the Republic of Vietnam and later, including the circumstances that led to his discharge from the Army.  None of his evidence addresses PTSD as a medically-recognized underlying cause of the conduct that led to his discharge.   

15.  Army Regulation 635-200 sets forth the policy for administrative 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.  However, an undesirable discharge was considered appropriate at the time the applicant was discharged.

   b. Paragraph 3-7a states 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 states 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.  
16.  Title 38, U.S. Code (USC), Section 5303 provides the legal parameters regarding certain bars to benefits administered by the VA.  

   a. Sub-paragraph (a) provides, in pertinent part, that a discharge or dismissal by reason of desertion, or on the basis of an absence without authority from active duty for a continuous period of at least one hundred and eighty days if such person was discharged under conditions other than honorable, unless such person demonstrates to the satisfaction of the Secretary that there were compelling circumstances to warrant such a prolonged unauthorized absence, shall bar all rights of such person under laws administered by the Secretary, based on the period of service from which discharged or dismissed, notwithstanding any action subsequent to the date of discharge by a board established pursuant to 10 USC Section 1553 (emphasis added).

   b. Sub-paragraph (e) (1) provides that notwithstanding any other provision of law:

      (1) no benefits under laws administered by the Secretary shall be provided, as a result of a change in or new issuance of a discharge under         10 USC Section 1553, except upon a case-by-case review by the board of review concerned, subject to review by the Secretary concerned, under such section, of all the evidence and factors in each case under published uniform standards (which shall be historically consistent with criteria for determining honorable service and shall not include any criterion for automatically granting or denying such change or issuance) and procedures generally applicable to all persons administratively discharged or released from active military, naval, or air service under other than honorable conditions; and 

      (2) any such person shall be afforded an opportunity to apply for such review under 10 USC Section 1553, for a period of time terminating not less than one year after the date on which such uniform standards and procedures are promulgated and published. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests affirmation of his previously-upgraded discharge, so he may obtain VA benefits.  He contends the circumstances leading to his discharge resulted from PTSD after his service in the Republic of Vietnam.

2.  Neither his record nor the evidence provided supports his contentions regarding PTSD.  


3.  The evidence of 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.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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.

4.  Nevertheless, after reviewing his case a second time, the ADRB determined he had been properly but not equitably discharge and upgraded his discharge to an under honorable conditions (general) discharge.  

5.  Based on 38 USC Section 5303, the applicant is still barred from receiving benefits administered by the VA, because his discharge resulted from a period of AWOL in excess of 180 days.  The burden is on the applicant to provide compelling circumstances to warrant such a prolonged unauthorized absence.  In this regard, the applicant has failed.  

6.  The applicant was in an AWOL status 192 days.  He could have willingly returned at any earlier time; however, he chose not to do so.  He now provides numerous pages of his own notes regarding his life circumstances at the time. Despite any hardships he may have experienced at the time, he still maintained a support network within the Army that he could have used to address his issues.  Instead, he went AWOL, which clearly exhibited a total disregard for the Army and his chain of command.

7.  The applicant's administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  Notwithstanding the original determination by the ADRB, the official record shows his service was not satisfactory and his general discharge should not be affirmed.

8.  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 any further correction of his 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)                                         AR20110015482



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ABCMR Record of Proceedings (cont)                                         AR20120017500



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