IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20120023035 


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 his discharge be changed to a general, under honorable conditions discharge due to his Post-Traumatic Stress Disorder (PTSD).

2.  The applicant states:

* he developed PTSD while in Vietnam from exposure to traumatic stressors 
* in error he turned to drugs to deal with his condition and that exacerbated his service-connected illness
* he was not given the help he needed in order to diagnose and treat his condition
* he was advised by his command sergeant major to accept a discharge under other than honorable conditions
   
3.  The applicant provides the following:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* four pages of his medical records

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 31 August 1971.  Upon completion of basic and advanced individual training, he was awarded military occupational specialty 76A (Supply Clerk.)  He served in Vietnam from 
18 March to 29 November 1972.

3.  His record contains:

	a.  his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for the following offenses:

   (1)  one instance of failing to go at the prescribed time to his appointed
place of duty on 4 February 1972, prior to his assignment to Vietnam; and 

   (2)  three instances of being absent without leave (AWOL) during the
periods:

   (A)  22 to 23 April 1972, during his assignment in Vietnam; and 
   
   (B)  6 to 27 February 1973, and 23 to 28 April 1973, after he was
reassigned from Vietnam.

	b.  a DD Form 458 (Charge Sheet), dated 14 September 1973, indicates he was charged with two specifications of being AWOL during the period 
30 July to 5 September 1973.

4.  On 25 September 1973, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

5.  The applicant's chain of command recommended approval of his request with an under other than honorable conditions discharge.  On 3 October 1973, the separation authority approved the applicant's discharge request and directed that he be reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 and given an under other than honorable conditions discharge. 

6.  On 15 October 1973, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 he was issued shows he completed 1 year, 10 months, and 8 days of total active service and had 99 days of time lost due to AWOL.  

7.  On 12 June 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

8.  The applicant's record is void of any indication he informed or sought help from his chain of command for his drug or mental health issues.

9.  He submitted four pages of his progress notes from an office visit, dated 
19 November 2012, which stated he had a history of sleep apnea and presented for an evaluation for PTSD.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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, at the time an undesirable discharge was normally considered appropriate.
	a.  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.

	b.  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 voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood 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.  There is no indication that his request was made under coercion or duress.

2.  His service record shows he received four Articles 15 and was AWOL a total of 99 days.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The applicant's record is void of any indication he informed or sought help from his chain of command for his drug or mental health issues.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

5.  The available evidence is insufficient for granting the applicant's 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 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)                                         AR20120023035





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ABCMR Record of Proceedings (cont)                                         AR20120023035



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