IN THE CASE OF:	  

		BOARD DATE:	    27 August 2013

		DOCKET NUMBER:  AR20130000965 


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 under other than honorable conditions discharge.

2.  The applicant states after serving in Vietnam during his second enlistment, he was suffering from post-traumatic stress disorder (PTSD).  He is currently in bad health due to the effects of Agent Orange exposure and he needs medical assistance.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a medical statement. 

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 27 January 1966 and he held military occupational specialty 91A (Medical Corpsman).  He served in Okinawa from 23 July 1966 to 8 March 1967.

3.  While in Okinawa, he was honorably discharged on 3 March 1967 for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he completed 1 year, 1 month, and 7 days of total active service.

4.  He reenlisted on 4 March 1967 and he subsequently served in Vietnam from 15 April 1967 to 20 June 1969.  He was awarded or authorized the Vietnam Service Medal, National Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and Republic of Vietnam Gallantry Cross with Palm Unit Citation.

5.  On 12 December 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 11 to 12 December 1969.

6.  On 16 December 1969, he again accepted NJP under the provisions of
Article 15, UCMJ for being AWOL from 23 October to 4 December 1969.

7.  On 30 October 1970, he was convicted by a special court-martial of three specifications of AWOL from 22 to 30 December 1969, 3 January to 18 May 1970, and 19 June to 21 September 1970.  The court sentenced him to confinement at hard labor for 5 months, a forfeiture pay per month for 5 months, and reduction to the lowest enlisted grade.

8.  On 16 December 1970, he again departed his unit in an AWOL status and on that date he was dropped from rolls of his unit as a deserter.  He ultimately returned to military control on 18 May 1971 and he was placed in pre-trial confinement.

9.  On 20 May 1971, court-martial charges were preferred against him for being AWOL from 16 December 1970 to 18 May 1971.

10.  On 24 May 1971, the applicant 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.   In his request for discharge, the applicant acknowledged:

* he was making this request on his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf

11.  On 8, 9, and 14 June 1971, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  His intermediate commander stated the applicant stated his troubles started when an overpayment was discovered in his finance records at Fort Jackson, SC and the deficit was being removed from his pay.  Consequently, the applicant complained that he was not receiving sufficient pay.  He then pointed out that his father was ill and that he requested a compassionate reassignment but it was turned down.  He stated that his hardships were so great that he was unable to get back on a straight path.

12.  On 17 June 1971, the applicant underwent a separation physical and he was found medically qualified for separation.

13.  On 10 July 1971, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 16 July 1971.

14.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 2 years, 8 months, and 23 days of net active service this period with 590 days of time lost for 3 years, 10 months, and 9 days of total active service.

15.  The applicant subsequently petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 1 May 1979, the applicant was notified that the ADRB reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge.

16.  He provides a statement from a medical doctor, dated 14 June 2012, who opines that the applicant is one of his patients and that he is being treated for PTSD secondary to his combat experience in the Army during the Vietnam war.

17.  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 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, an undesirable discharge 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 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.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence that shows the applicant suffered from PTSD during his military service.  In fact, he underwent a separation physical on 17 June 1971 and he was found medically qualified for separation.  Likewise, there is no evidence of record and none was provided with this application to show he suffered an injury or was diagnosed with an illness or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty. 

3.  The applicant was not discharged because of any medical condition.  He was discharged because he chose to go AWOL and when he was returned to military control he chose to be discharged.  His service was interrupted by his extensive history of AWOL.

4.  The available evidence clearly shows he elected to go AWOL on at least seven separate occasions.  Additionally, upon preferring court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made.  There is no evidence that the Vietnam War, PTSD, or any other reason caused him to make those choices.

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

6.  In view of the foregoing, there is no basis for granting him 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)                                         AR20130000965



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ABCMR Record of Proceedings (cont)                                         AR20130000965



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