IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130006844 


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, in effect, an upgrade of his undesirable discharge (UD) to an honorable discharge.

2.  The applicant states:

* he was suffering from a medical condition which had not been recognized/diagnosed at the time of his discharge
* he still suffers from the condition which has resulted in his inability to work and he is on disability
* he enlisted in 1970 and again in 1971 during the Vietnam War
* he was deployed to Vietnam from 21 June to 1 September 1971 during a period when Agent Orange and other herbicides were used in support of military operations
* according to the Federal Benefits for Veterans Handbook, military personnel who were deployed in Vietnam between 9 January 1962 and 6 May 1975 are presumed to have been exposed to Agent Orange and other herbicides
* he is being treated for two of the presumptives for exposure to Agent Orange:  Type 2 diabetes and heart disease
* on 24 August 1971, he was injured in action, received the Purple Heart, and his medical condition required a blood transfusion
* he has been diagnosed with Hepatitis C
* he is haunted by actions he participated in and witnessed in Vietnam
* he has been living below the poverty line
* his children have spent their youth watching him go from the sole provider to someone unable to provide for his family and having to move from a good neighborhood with good schools to a housing project and living in fear due to laws being broken daily
* he has been diagnosed with post-traumatic stress disorder (PTSD) as well as several other deployment related medical conditions
* he would have received a different type of discharge had his first enlistment, injuries, and his PTSD been considered
* after his second tour, he came back from Vietnam a different person
* his excess leave status was due to returning late one time and by one day the week prior to his deployment; the remaining excess leave was after his deployment
* neither he nor his superiors understood what was happening and why he exhibited such a stark change in behavior 

3.  The applicant provides:

* self-authored statements
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letter from the Department of Veterans Affairs (VA), dated 20 September 2010
* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* General Orders Number 111, issued by Headquarters, 24th Evacuation Hospital, dated 25 August 1971
* Standard Form 180 (Request Pertaining to Military Records), dated 15 December 2010
* National Personnel Records Center (NPRC) letter, dated 3 January 2011
* Army Board for Correction of Military Records (ABCMR) letter, dated 16 November 2011
* DD Form 215 (Correction to DD Form 214)
* two letters from his sister
* Congressional correspondence

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 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's records show he was inducted into the Army of the United States on 8 September 1970 and he was honorably discharged on 9 May 1971 for the purpose of immediate enlistment in the Regular Army (RA).

3.  On 10 May 1971, he enlisted in the RA and he held military occupational specialty (MOS) 05B (Radio Operator).  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 21 July 1971 to 1 September 1971.

4.  Special Court-Martial Order Number 22, issued by Headquarters, 11th Air Defense Artillery Group, Fort Bliss, TX, dated 2 March 1972, shows he was tried and found guilty of being absent without leave (AWOL) from on or about 9 December 1971 to 6 January 1972. 

5.  On 30 March 1972, he was awarded MOS 94B (Cook).

6.  On 18 August 1972, court-martial charges were preferred against him for:

* being AWOL from on or about 6 July to 15 July 1972
* being AWOL from on or about 15 July to 18 July 1972
* being AWOL from on or about 19 July to 26 July 1972
* failure to go to his place of duty on or about 1 August 1972
* disobeying an order on or about 28 August 1972

7.  DA Forms 2823 (Witness Statement), dated 21 and 22 August 1972, show:

* on 3 July 1972, the applicant's unit was advised he had been hospitalized due to an automobile accident
* on 6 July 1972, he was released from the hospital and he caught a bus to Atlanta, GA
* on 7 July 1972, the applicant sent a telegram to his unit advising them he had been released from the hospital and that if anyone wanted to talk to him to call him at home, but he did not include a home address or phone number
* on 14 July 1972, the applicant called his unit and left a message stating he was on convalescent leave and he left his home phone number
* his first sergeant advised him he was in an AWOL status and if he was unable to travel, to go to the nearest military installation to turn himself in to the hospital for convalescent leave and/or verification of his condition
* the applicant was also informed that he could call the Atlanta recruiting office for assistance
* his first sergeant told him he was to report back to the unit as soon as possible if his doctor told him he could travel
* the applicant was not heard from until 26 July 1972, when he was seen going down a hallway in his unit unshaven and in need of a haircut
* on 1 August 1972, the applicant failed to report to his assigned place of duty at the prescribed time

8.  A Standard Form 88 (Report of Medical Examination), dated 12 September 1972, which was completed for his separation processing shows the annotation, "There is no reasonable grounds for belief that this individual is or ever has been mentally defective, deranged or abnormal.  A psychiatric examination is not deemed to be appropriate."

9.  On 19 September 1972, an additional charge of being AWOL from on or about 15 September to 20 September 1972 was preferred against the applicant.

10.  On or about 20 September 1972, 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 Uniform Code of Military Justice (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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he was making this request of 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 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 VA, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life
* he elected to submit a statement on his own behalf

11.  The applicant signed two undated DA Forms 2823 in which he indicated he was fully aware he was receiving a UD and that he was advised of the benefits he would lose.  He also stated:

* he had just been court-martialed and did not feel he could go through another one and that did not want to stay in the Army
* it was not his nature to go when something is happening elsewhere and that he had left several times and was quite sure it would happen again
* he could not put himself in the routine (of the Army) and that he would most likely get uptight again and take off for another AWOL
* he hated to hide out and just wanted to be put out of the Army

12.  On 20 October 1972, the separation authority approved his request for discharge, directed that he be discharged for the good of the service and issued an Undesirable Discharge Certificate, and directed that he be reduced to private/E-1.  On 20 October 1972, he was discharged as directed.

13.  On 26 May 1981, the applicant was notified of the Army Discharge Review Board's denial of his request for an upgrade of his discharge.

14.  On 17 November 2011, the applicant was issued a DD Form 215 correcting his DD Form 214 to show he had been awarded the Purple Heart based upon corrective action directed by the ABCMR.

15.  The applicant provides self-authored statements, a DD Form 293, a letter from his psychiatrist detailing his treatment and progress, special orders awarding him the Purple Heart, a letter from the NPRC advising him of his Purple Heart shipment, DD Forms 214 and 215, two letters from his sister describing his character and experiences, and Congressional correspondence.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

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

	a.  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, a discharge under other than honorable conditions 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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL on multiple occasions, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  There is no evidence he had a condition that rendered him unfit to perform the duties required of his office, grade, rank or rating.

4.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  For the purpose of determining an individual's eligibility for benefits, the VA, based on its own governing statutes and regulations, may determine a veteran's service was honorable.  This action by the VA is not evidence of an error in the character of service recorded in the individual's Army record.  The Army assigns a characterization of service based on the reason for discharge and the quality of the individual's service during the period in question.  

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to 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)                                         AR20130006844



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ABCMR Record of Proceedings (cont)                                         AR20130006844



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