IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130008961 


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

2.  The applicant states he served honorably in the U.S. Army.  When he returned from Vietnam he was assigned to Fort Hood, TX, where they were practicing war maneuvers.  This caused him to have feelings of stress, panic and anger, and resulted in him leaving post without proper authority.  He now realizes that he was suffering from post-traumatic stress disorder (PTSD).  He continues to struggle with this in his life and requests an upgrade of his discharge in order to be eligible to receive proper medical care from the Department of Veterans Affairs (VA).

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

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 (RA) on 26 February 1968 for a period of 3 years.  He was awarded military occupational specialty 11E (Armor Crewman) and promoted to private first class/pay grade E-3 on 5 October 1968.

3.  He served overseas in Germany from 26 July 1968 to 27 April 1969 and he reenlisted in the RA on 26 March 1969.

4.  A DD Form 214 shows the applicant entered active duty on 25 February 1968 and he was honorably discharged on 25 March 1969 to reenlist in the RA.  He had completed 1 year and 1 month of net active service this period.

5.  He served overseas in Vietnam from 7 June 1969 to 17 July 1970.

6.  He accepted nonjudicial punishment (NJP) for:

* being absent without leave (AWOL) from 3 to 23 November 1969
* failing to report for guard duty (two occasions), leaving his post before being regularly relieved (two occasions), failing to obey a lawful order, failing to obey a lawful command, and wrongly appropriating a 1/4-ton Jeep (February 1970)
* wrongly appropriating a 3/4-ton truck (two occasions) and subjecting it to damage by small arms fire (May and June 1970)

7.  In March 1970, the applicant was convicted at a special court-martial of failing to go at the time prescribed to his appointed place of duty on 5 February 1970.
He was sentenced to forfeiture of $80.00 pay per month for 1 month and to be confined at hard labor for 1 month (suspended for 3 months).

8.  On 15 July 1970, the applicant was reassigned to Fort Hood, TX.

9.  On 30 March 1971, court-martial charges were preferred against the applicant for:

* being AWOL from 28 August 1970 to 4 February 1971
* breaking restriction on 1 March 1971
* stealing cash from other Soldiers (four specifications) on 1 March 1971

10.  On 25 May 1971, the applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	c.  The applicant and his counsel placed their signatures on the document.

11.  On 4 June 1971, the applicant consulted with another defense counsel who provided additional advice to the applicant regarding his case.  At that time, the applicant affirmed his desire for discharge from military service.

12.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

13.  The separation authority approved the applicant's request for discharge and directed separation with an undesirable (under other than honorable conditions) discharge.

14.  The applicant's DD Form 214 shows he entered active duty this period on 
26 March 1969 and he was discharged on 25 June 1971 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

   a.  He completed 1 year, 5 months, and 29 days of net active service this period; 1 year and 1 month of other service; and 2 years, 6 months, and 29 days of total service.

   b.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show he had 277 days lost under Title 10, U.S. Code, section 972.

15.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.
16.  The applicant provides a copy of a letter from Mr. James H. G---, Department Service Officer, Disabled American Veterans, Poplar Bluff, MO, dated 3 April 2013, who confirmed that the applicant submitted a request for upgrade of his discharge to the Army Discharge Review Board on 25 May 2012 and that he provided the applicant assistance in resubmitting his application to the ABCMR on 3 April 2013.

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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 contends that his discharge under other than honorable conditions should be upgraded because he served honorably but experienced symptoms of PTSD when he returned from Vietnam, which caused him to go AWOL and resulted in his discharge.

2.  Records show a DD Form 214 was issued to document the applicant's period of honorable active duty service from 25 February 1968 through 25 March 1969.

3.  There is no available evidence to show that he was suffering from PTSD or that this caused him to go AWOL from Fort Hood, TX.

4.  The evidence of record shows the applicant was charged with being AWOL from 28 August 1970 to 4 February 1971, breaking restriction, and stealing cash from other Soldiers (four specifications), and that he elected to request discharge in lieu of being court-martialed.

5.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

6.  During the period of service under review, the applicant received NJP on three occasions, he was convicted at a special court-martial, he had 277 days (i.e., more than 9 months) of time lost, and he completed less than half of his
3-year reenlistment obligation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

8.  Therefore, there is an insufficient basis for granting the requested relief.

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)                                         AR20130008961



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ABCMR Record of Proceedings (cont)                                         AR20130008961



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