IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130012037 


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 that he earned the Bronze Star Medal for meritorious achievement in Vietnam for the period 1 March to 31 December 1969.  He lost several friends in combat, participated in multiple engagements that made him fear for his life, and he currently suffers from Post-Traumatic Stress Disorder (PTSD).  He needed mental health counseling but none was provided.  He was illiterate and did not know where to get help.  He went absent without leave (AWOL) due to his combat stress and because his attempts to get help were not acknowledged.

3.  He has been married for 21 years and owns his home.  He is a caring, reliable, and accountable person.  His character and actions do not warrant an under other than honorable conditions discharge.  If today's standards were applied to his circumstances, his characterization of service would be different.

4.  The applicant provides his Bronze Medal Star certificate and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 
9 September 1968.  The highest rank/grade he attained while serving on active duty was specialist four/E- 4.

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 5 to 12 January 1969.

4.  A temporary DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from February 1969 to February 1970.  The applicant was awarded the Bronze Star Medal for meritorious achievement in ground operations against hostile forces in the Republic of Vietnam from 1 March to 31 December 1969.

5.  On 24 September 1971, court-martial charges were preferred against him for one specification of being AWOL for the period 8 March 1970 to 24 September 1971.

6.  On 28 September 1971, he consulted with counsel and 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.

7.  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.

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

9.  On 1 November 1971, the discharge authority approved his request and directed the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 19 November 1971.

10.  His DD Form 214 shows he completed 1 year, 7 months, and 21 days of creditable active service with 566 days of time lost due to AWOL.

11.  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.

12.  There is no evidence the applicant suffered from PTSD or that he sought assistance for any mental health issues during his period of service. 

13.  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.  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 contends that his discharge should be upgraded because he suffered from PTSD and, although he asked for help, he never received it.

2.  The applicant's service in Vietnam is not in question; however, there is no evidence and he has not provided any evidence to show he was diagnosed with PTSD or that he sought assistance through his chain of command for any type of combat related stress problem at any time during or after his tour of duty.  In the absence of documentation to support his claim, the presumption of regularity must be applied.

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

4.  His record of service included 566 days of lost time.  Based on his lengthy period of AWOL, 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.

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 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)                                         AR20130012037





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ABCMR Record of Proceedings (cont)                                         AR20130012037



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