IN THE CASE OF:	  

		BOARD DATE:	  26 February 2014

		DOCKET NUMBER:  AR20130010729 


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.  He states the evidence pertinent to the relief requested was not available or submitted in his 1973 hearing with the Army Discharge Review Board (ADRB).  He further states:

* he is a Vietnam veteran and was wounded in action on 26 February 1969
* he has earned numerous awards to include the Bronze Star Medal with "V" Device and a Purple Heart
* he was severely wounded by small arms fire while trying to give medical support to a wounded comrade
* he was unaware of the extent of his suffering from post-traumatic stress disorder (PTSD) and its consequences on his life
* he made a terrible and costly error in judgment and was absent without leave (AWOL)
* he was young and foolish

3.  He provides:

* self-authored letter to the Army Board for Correction of Military Records (ABCMR) with list of exhibits
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Headquarters, 3d Field Hospital, General Orders Number 64, dated 3 March 1969
* Headquarters, II Field Force Vietnam, General Orders Number 1562, dated 21 June 1969
* Veteran Information Form, dated 19 May 2010
* The Mississippi Scale for Combat-Related PTSD, undated
* Combat Exposure Scale, dated 2 July 2010
* State of Michigan Disability Determination for Social Security Administration, dated 18 September 2011
* National Personnel Records Center letter, dated 9 April 2012
* Department of Veterans Affairs (VA) hearing transcript, dated 3 August 2012
* five supporting statements

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 enlisted in the Regular Army on 29 January 1968 at 18 years and 3 months of age.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 6 January 1969 for being AWOL from 13 November to 16 December 1968.

3.  He served in Vietnam from 29 January to 10 March 1969 and in Korea from 25 April to 4 December 1969.

4.  On 23 February 1971, charges were preferred against him for being AWOL from 7 April 1970 to 15 February 1971.

5.  On 26 October 1973 after consulting with counsel, the applicant 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.
6.  The applicant's request for discharge stated he had not been subjected to coercion and he was advised of the implications attached to his request.  He understood he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He understood that he might be deprived of many or all Army benefits, he might be ineligible for many or all VA benefits, and he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He stated he was afforded the opportunity to consult with counsel prior to completing his request for discharge and he was advised of the nature of his rights under the Uniform Code of Military Justice.

7.  The applicant's record is void of a physical or mental examination or any evidence that shows he was diagnosed with PTSD.

8.  On 26 October 1973, the company commander recommended the applicant's discharge and issuance of an Undesirable Discharge Certificate.  He stated the applicant had been medically examined and was qualified for separation.  He said there did not appear to be any reasonable grounds to believe the applicant was mentally defective, deranged, or abnormal at the time of his misconduct.  The applicant had accrued a total of 1,297 days of lost time (1,190 days due to AWOL).  He listed the applicant's confinement dates as 16 October to 31 October 1973.

8.  On 8 November 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

9.  On 29 November 1973, he was discharged under other than honorable conditions.  His DD Form 214 shows he was issued an Undesirable Discharge Certificate.  It also shows he completed 2 years, 3 months, and 14 days of net active service during this period with lost time from 20 April to 12 May 1968, 13 November 1968 to 5 February 1969, and 7 April 1970 to 28 January 1971 – a total of 849 days of lost time subject to normal expiration term of service (ETS).  He also had lost time from 29 January to 15 February 1971.

10.  His DD Form 214 shows he was awarded or authorized the following awards:

* National Defense Service Medal
* Purple Heart
* Vietnam Service Medal
* Armed Forces Expeditionary Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)

10.  On 22 August 1974, he appealed to the ADRB for an upgrade of his discharge.  In the ADRB's Record of Proceedings, dated 26 November 1974, the applicant stated that he was AWOL from the confinement facility from 23 May 1971 to 15 October 1973 because he felt that it was unsafe for anyone to stay there.  He said he remained AWOL because no one came to pick him up.  On 31 July 1975, the ADRB determined there was insufficient evidence to indicate probable material error or injustice; therefore, his application was denied.

11.  He provided the following documents in support of his application:

	a.  Headquarters, 3d Field Hospital, General Orders Number 64, dated 3 March 1969, show he was awarded the Purple Heart for wounds received in action on 2 March 1969.

	b.  Headquarters, II Field Force Vietnam, General Orders Number 1562, dated 21 June 1969, show he was awarded the Bronze Star Medal with "V" Device for heroism in connection with military operations against a hostile force in the Republic of Vietnam (RVN) on 26 February 1969.

	c.  The Mississippi Scale for Combat-Related PTSD and the Combat Exposure Scale, dated 2 July 2010, indicate his symptoms were consistent with PTSD.

	d.  The State of Michigan Disability Determination for Social Security Administration, dated 18 September 2011, shows the applicant reported that he suffers with depression, arthritis, hearing loss, inability to sleep, weight gain of 100-plus pounds, and PTSD.  He was diagnosed with major chronic PTSD, moderate recurrent depressive disorder, and an adjustment disorder with mixed anxiety and depressed mood.

	e.  On 23 July 2007, the applicant underwent a VA hearing concerning the character of his discharge.  In the copy of the transcript of his hearing, he expounded on his military service and the situation that led him to be AWOL.

	f.  The five supporting statements speak highly of the applicant's honesty and dependability.  Several statements submitted by former Soldiers during his service in the military recalled the applicant's service as a top-notch medic in combat and his ability to "step up" when the shooting started.  One author recalled the applicant's wounding in the RVN and his continual care for the seriously-injured Soldiers while wounded.  Another author stated he did not feel the applicant was properly informed of any and all resources available to him that would have helped him with his family situation.

12.  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 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, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	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 argues, in effect, that his discharge should be upgraded because his misconduct was based on suffering from PTSD.  There is no evidence and he has not provided any evidence to show that PTSD caused his misconduct and/or that he sought counseling/medical treatment to correct his problems during his military service.  The fact that 37 years later he provides the Mississippi Scale for Combat-Related PTSD, the Combat Exposure Scale, and the State of Michigan Disability Determination for Social Security Administration documents, dated 2010 and 2011, which indicate he was diagnosed with PTSD is not sufficient as a basis to upgrade his discharge.

2.  Although his physical and mental examinations were not available for review, his company commander stated the applicant had been medically examined and was qualified for separation.  He said there did not appear to be any reasonable grounds to believe that the applicant was mentally defective, deranged, or abnormal at the time of his misconduct.

3.  The applicant's records show he was 18 years and 3 months of age at the time of his enlistment, 20 years and 1 month of age at the time of his first AWOL, and 24 years and 1 month of age at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant's records also show he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

5.  His record of service included one nonjudicial punishment for a lengthy period of AWOL prior to his arriving in Vietnam and 849 days of lost time prior to his ETS.  Based on this 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 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 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)                                         AR20130010729



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ABCMR Record of Proceedings (cont)                                         AR20130010729



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