BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20120022854 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was wounded in Vietnam and he was recovering from his wounds.  He also believes he was suffering from post-traumatic stress disorder (PTSD), but no one knew the condition existed or its cause.  He goes on to state that he believes this condition caused him to act out because he knew that something was not right with him other than his wounds. He continues by stating that he takes responsibility for his actions at the time but he also believes the Army has some liability because he was not receiving the proper treatment for all of his injuries. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his Social Security Disability Report.

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 was inducted into the Army of the United States on 7 August 1968.  He completed basic training at Fort Jackson, SC and advanced individual training as an infantryman at Fort Gordon, GA. 

3.  On 11 March1969, he was transferred to Vietnam for assignment to Company B, 5th Battalion, 12th Infantry Regiment, 199th Light Infantry Brigade for duty as a rifleman.

4.  On 29 March 1969, he was wounded in action and received multiple fragments wounds to the right leg.  He was treated in Vietnam and on 26 May 1969 transferred to a hospital in Japan.  On 7 July 1969, he was transferred to the Medical Holding Detachment, Hunter Army Airfield, GA.

5.  On 16 January 1970, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 5 to 9 January 1970.

6.  On 22 January 1970, the applicant went AWOL and remained absent until he was returned to military control on 21 February 1970.  He again went AWOL on 22 February 1970 and remained absent until he was returned to military control at Fort Belvoir, VA on 16 November 1970. 

7.  On 14 January 1971, he was convicted by a special court-martial of being AWOL from 22 January to 21 February and 22 February to 16 November 1970.  

8.  Again, on 21 April 1971, the applicant went AWOL and remained absent in a desertion status until he was apprehended by civil authorities in South Carolina on 25 July 1971.  He was returned to military control at Fort Jackson, SC where charges were preferred against him for this period of AWOL.

9.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Houston, Texas in 1979.  However, his records do contain a DD Form 214 which shows that he was discharged under other than honorable conditions on 27 August 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year,
11 months and 13 days of active service and he had 518 days of lost time due to being AWOL and in confinement.

10.  On 19 February 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Special Discharge Review Program (SDRP) and on 9 September 1977, the ADRB upgraded the applicant’s discharge to a general discharge.  The ADRB affirmed his general discharge on 16 October 1978.

11.  The document submitted by the applicant with his application reflects that in 2010 the applicant was diagnosed as having PTSD.

12.  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, 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 an individual who was discharged for the good of the service.

13.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

14.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.  

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge for the good of the service to avoid a trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Notwithstanding the actions of the ADRB, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  

3.  The applicant's contentions have been noted; however, given the repetitive nature and extensive length of his absences and his overall record of service, his contentions are not sufficiently mitigating to warrant relief.  There is no evidence to show that his misconduct was caused by PTSD as he claims or that there were any other mitigating circumstances sufficient to further upgrade his discharge.  Accordingly, there appears to be no basis to grant his request.

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)                                         AR20120022854



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ABCMR Record of Proceedings (cont)                                         AR20120022854



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