IN THE CASE OF:	  

		BOARD DATE:  14 January 2014

		DOCKET NUMBER:  AR20130005897 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states that he did and still suffers from post-traumatic stress disorder (PTSD).

3.  The applicant provides no additional evidence.

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 19 May 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  
3.  His DA Form 20 (Enlisted Qualification Record) shows he had lost time during the following periods:

* 3 December 1970 to 9 October 1972, absent without leave (AWOL)
* 10 October to 12 October 1972, in the hands of civil authorities
* 13 October to 25 October 1972, confinement
* 26 October 1972 to 25 February 1973, AWOL

4.  His records contain a Military Police Report, dated 28 February 1973, which shows on 26 February 1973 he was apprehended by civilian authorities in Harrison, Ohio and subsequently returned to military control from AWOL.

5.  On 8 March 1973, court-martial charges were preferred against him for being AWOL during:

* 3 December 1970 to 10 October 1972
* 26 October 1972 to 26 February 1973

6.  On 2 March 1973, while assigned to the stockade in Germany, the applicant reported that he had frequent trouble sleeping, depression or excessive worry, and nervous trouble during a medical examination.  Upon examination, the physician indicated that the applicant had a normal psychiatric evaluation in item 42 (Psychiatric) of the applicant's Standard Form 88 (Report of Medical Examination).

7.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 on 9 March 1973.

8.  He indicated he understood that if his request were accepted, he could be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

9.  He elected not to submit a statement in his own behalf. 

10.  On 19 March 1973, the discharge authority approved his request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 26 March 1973.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 5 months of creditable active duty service with 243 days of time lost due to AWOL prior to his normal expiration term of service (ETS) and 645 days of lost time subsequent to his normal ETS.

12.  He completed 1 year of foreign service in the Republic of Vietnam.  He was awarded the Combat Infantryman Badge and the Bronze Star Medal.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  There is no documentation in the available record which shows the applicant was diagnosed with PTSD or any other mental health condition during his period of service.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 in lieu of trial by court-martial 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, the 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 to an individual who was discharged for the good of the service at that time.

	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 requests an upgrade of his discharge under other than honorable conditions to an honorable discharge due to his PTSD.

2.  The available evidence is not sufficient to determine if he suffered from PTSD or any other mental health condition.  Further, a diagnosis of PTSD, even if incurred while on active duty, does not, in and of itself, absolve acts of misconduct or entitle an individual to an upgrade of his/her discharge.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.

3.  His record of service included over 1000 days of lost time.  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 an honorable or a general discharge.

4.  The evidence of record shows he was charged with the commission of offense(s) 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 is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  In view of the above, his request should be denied.

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)                                         AR20130005897





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ABCMR Record of Proceedings (cont)                                         AR20130005897



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