IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130000390 


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 an honorable discharge.

2.  The applicant states:

	a.  At the time of his discharge, post-traumatic stress disorder (PTSD) influenced uncharacteristic behavioral changes resulting in absent without leave (AWOL) activities.  This was due to a lack of adequate help to reincorporate his social skills into society after his tour in Vietnam.

	b.  After returning from Vietnam, he spent a few weeks back home then he reported to Fort Hood, TX, where he tried to relate his problems to a psychiatrist. After a week or two of listening to him, the psychiatrist ended their session by saying "You're in the Army now, you will have to straighten out."  He never addressed the issue that he could not straighten out and he needed help.  After that visit, he was so distraught he realized no one was going to help him.  The only way to fix what was broken was obviously his problem alone.  So he left as he had no other recourse.  The psychiatrist had no idea what he did to him that day by denying him the help he needed and begged for.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and discharge orders.


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 2 August 1968.  It is unknown what military occupational specialty he was trained in or awarded.  He served in Vietnam from on or about 10 May 1969 to 10 April 1970.  He was subsequently assigned to the 2nd Battalion, 52nd Infantry, 1st Armored Division, Fort Hood.

3.  On 26 June 1970, he was reported as AWOL from his assigned unit and on 13 July 1970, he was returned to the 2nd Battalion, 52nd Infantry, 1st Armored Division, Fort Hood.

4.  On 14 July 1970, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls (DFR) of his unit as a deserter.

5.  On 19 June 1973, he was apprehended and returned to military control and assigned to the Personnel Control Facility at Fort Gordon, GA.

6.  On 25 July 1973, court-martial charges were preferred against him for being AWOL from 26 June to 13 July 1970 and from 14 July 1970 to 19 June 1973.

7.  On 9 August 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), and of the procedures and rights available to him.

8.  Following consult with legal counsel, the applicant 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.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He would be deprived of many or all Army benefits and may be ineligible for many or all benefits administered by the Veteran's Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life by reason of his undesirable discharge.

9.  In his self-authored statement, he stated he disliked the Army because he felt he was let down, probably due to the unconcern for individual problems.  He needed help and he was brushed off more than once.  His own potential to live as he felt he must was too strong to compromise with the impersonal, false values expressed by the Army.  He felt the 2 good years he had put in would be wasted with a bad discharge.  He further stated if he had to start over, he would do what he could with what he had.

10.  On 15 August 1973, his immediate and intermediate commanders recommended disapproval of his request for a chapter 10 discharge and recommended the applicant be tried by a general court-martial.

11.  On 20 August 1973, the applicant underwent a psychiatric examination.  The examining physician stated:

	a.  He examined the applicant on two occasions.  On the first occasion it appeared he had anxiety symptoms and symptoms of depression, specifically low mood and tearfulness.  He stated he tended to stay by himself and away from the company of others but stated that was normal for him.  There was no evidence of loss of memory or impairment and it appeared the anxiety and depression he had was a result of his [current] situation.

	b.  At the time of the alleged offense, the applicant was free from mental defect, disease, or derangement and he was able to distinguish right from wrong.  He possessed sufficient mental capacity to understand the nature of the proceedings against him and to intelligently conduct or cooperate in his defense.

12.  On 20 August 1973, the separation authority disapproved accepting the applicant's request for a discharge for the good of the service.

13.  An investigating officer (IO) was subsequently appointed to investigate the charges against the applicant.  In an IO's Report, dated 21 August 1973, the IO stated:
	a.  The applicant stated he did not receive any psychiatric care while he was AWOL from the Army and did not feel he currently needed help.  He stated he enlisted in the Army to escape family problems.  He was sent to Vietnam in 1969 and worked as a map maker, radio operator, and sergeant of the guard.  He was in the field and volunteered to take the wounded to a helicopter for medical evacuation.  He expected to get shot but was totally relaxed and did not worry about it.  He started to use drugs, cocaine, and pot to relax and did not take cover in further combat situations.  He just did not care.

	b.  He went on leave from Vietnam to Fort Hood and hung around the snack bar.  He did not remember going AWOL, he just walked onto the base and everything was closed.  He got nervous and just turned and walked out.  During the 3 years he was AWOL, he lived with a girl in Myrtle Beach, [SC], then he went to New York and back to Myrtle Beach.  He had a couple of jobs but they did not last long.  He turned himself in because he wanted to get it over with.

	c.  The IO recommended the applicant be tried by a general court-martial.  He stated the applicant claimed to have a history of using narcotics since his tour in Vietnam in 1969.  He also claimed to have started using narcotics because of nervousness under hostile fire.  His continued use of narcotics caused him not to care personally about anything.

14.  Court-martial charges were subsequently preferred against him for being AWOL from his assigned unit from 26 June to 13 July 1970 and 14 July 1970 to 19 June 1973.

15.  On 31 August 1973, the applicant was reported as AWOL from his assigned unit and he was DFR on the same date.

16.  On 26 November 1974, he was notified by letter that:

	a.  In reference to his phone call on 14 November 1974, a review of his records indicated he was eligible to participate in the program established by Presidential Proclamation 4313, on 16 September 1974.  He was advised to report to Fort Benjamin Harrison, IN, on or about 10 December 1974.

	b.  He would be given the opportunity to request a discharge for the good of the service, to reaffirm his allegiance to his country, and to pledge to perform alternate service for a period not to exceed 24 months.  Prior to that, he would be given the opportunity to consult with legal counsel.  Upon completion of the formal procedures, he would be given an undesirable discharge.  After 


satisfactorily completing not more than 24 months of alternate service, he would be issued a Clemency Discharge Certificate.

17.  In a statement the applicant submitted to the Joint Alternative Service Board, dated 5 December 1974,  he stated he went AWOL because he could not readjust to the Army after returning from Vietnam (emphasis added).  He also stated he wanted to sign a reaffirmation of allegiance, a pledge of public service, and accept an undesirable discharge.

18.  On 10 December 1974, the applicant completed a Standard Form 93 (Report of Medical History) at Fort Benjamin Harrison, IN, wherein he stated he was in good health and taking no medication.  He checked the appropriate blocks on the form to indicate he did not have and had never had frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness (emphasis added).  He also checked the appropriate block to indicate he had never been treated for a mental condition (emphasis added).

19.  On 10 December 1974, the examining physician determined the applicant was qualified for release from active duty.

20.  On 10 December 1974, the Joint Alternative Service Board determined the applicant would be required to serve 11 months of alternative service.

21.  On 11 December 1974, he consulted with legal counsel who advised him of the nature of the offenses for which he may be tried and the maximum permissible punishment that may be imposed under the UCMJ.  Following consult with legal counsel, the applicant requested discharge for the good of the service under the provisions of Presidential Proclamation 4313.  He acknowledged he understood he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He was also advised that he would be deprived of all Army benefits, he would be ineligible for all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.

22.  He further acknowledged he understood that within 15 days of his discharge, he must report to his State Director of selective Service to arrange for the performance of alternate service.  He acknowledged he understood that satisfactory completion of such alternate service would be acknowledged by the issuance on a Clemency Discharge Certificate but the certificate would not alter his ineligibility for any benefits predicated upon his military service.


23.  He was discharged on 11 December 1974.  The DD Form 214 he was issued shows he agreed to serve 11 months of alternate service pursuant to Presidential Proclamation 4313.  It also shows he was separated for the good of the service by willful and persistent AWOL with an under other than honorable conditions characterization of service.  He completed 2 years, 2 months, and 24 days of total active service with 1,502 days (or 4 years, 1 month, and 12 days) of time lost due to being AWOL or in confinement.

24.  There is no evidence in his available record that shows he was ever diagnosed with PTSD or any other mental condition or received psychiatric counseling while serving on active duty.  There is no evidence in his available records that shows he ever signed up for or completed 11 months of alternate service.

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

26.  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 included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge is authorized, an undesirable discharge was authorized at the time the applicant was discharged.

	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.

27.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for 


AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual's underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  In addition, when his initial request for discharge for the good of the service was denied, he went AWOL again.  Subsequently, he applied for and agreed to serve 11 months of alternative service and he was approved for discharge for the good of service pursuant to Presidential Proclamation 4313 and issued an Undesirable Discharge Certificate.  Discharges under Presidential Proclamation 4313, are voluntary requests for discharge in lieu of trial by court-martial.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  In addition, there is no evidence that shows he enrolled in or completed the alternate service he agreed to.

3.  The applicant contends his discharge should be upgraded because he had PTSD and a psychiatrist at Fort Hood did not give him the help he needed.  However, the evidence of record shows the applicant stated he abused drugs and could not readjust to the Army after his return from Vietnam.  He also stated he had never received mental health counseling and never suffered from depression or excessive worry.  There is no evidence that shows he was diagnosed with PTSD or any other mental condition or received psychiatric counseling while serving on active duty.

4.  His record of service shows at the time of his discharge he had over 4 years and 1 month of time lost due to being AWOL and/or in confinement.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.


5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130000390



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ABCMR Record of Proceedings (cont)                                         AR20130000390



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