IN THE CASE OF:	  

		BOARD DATE:	 1 May 2014 

		DOCKET NUMBER:  AR20130014903 


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 his undesirable discharge be upgraded.

2.  The applicant states he has post-traumatic stress disorder (PTSD) from Vietnam.  He reenlisted and his second enlistment was deeply affected by his PTSD.  His frame of mind was completely depressed and he went absent without leave (AWOL).  He was in no state of mind to be allowed to reenlist.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) with an effective date of 19 August 1976
* his citation for award of the Air Medal
* a letter, dated 29 July 2013, from Department of Veterans Affairs (VA) 

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.  On 15 April 1965, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He was assigned to Company A, 1st Battalion, 8th Cavalry (Airborne) in the Republic of Vietnam from 7 May 1966 to 28 April 1967.  He was promoted to specialist four/pay grade E-4 on 20 October 1966.

4.  On 12 April 1968, he was released from active duty.  He completed 2 years, 11 months, and 28 days of active service that was characterized as honorable.  His awards shown on his DD Form 214 include the Combat Infantryman Badge.

5.  On 1 August 1969, he enlisted a second time in the Regular Army in pay grade E-4 for 3 years.  On 2 September 1969, he was assigned to Headquarters and Headquarters Company, 1st Brigade, 8th Infantry Division in Mainz, Germany.  He went AWOL on 5 September 1970 and he surrendered to military authorities on 28 July 1976.

6.  On 30 July 1976, court-martial charges were preferred against the applicant for being AWOL from on or about 5 September 1970 to on or about 28 July 1976.

7.  On 30 July 1976, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 
40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

8.  On 3 August 1976, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of 
chapter 10 of Army Regulation 635-200 (Personnel Separations).  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf; he indicated he would not submit a statement

9.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

10.  On 12 August 1976, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest grade.

11.  On 19 August 1976, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 and issued an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 26 days of active service during the period under review that was characterized as under other than honorable conditions.  He had 730 days of time lost.

12.  His service medical records were not available for review.

13.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  He submitted a letter, dated 29 July 2013, from the VA that states he has a compensable service-connected disability of 50 percent effective 1 April 2012.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with 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.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends his second enlistment was deeply affected by his PTSD.  His service medical records are not available for review and he has not submitted any additional evidence to support this contention.  There is no available evidence showing he received any treatment for a mental condition during his second enlistment or during his period of AWOL.  

2.  The letter from the VA does not identify what disability he is receiving 
50 percent for and the effective date of the disability is 1 April 2012, over 
35 years after his discharge.  

3.  Therefore, there is insufficient evidence to show his PTSD affected his decision to go AWOL or his decision to request a discharge for the good of the service.

4.  His long period of AWOL shows his service during his second enlistment was unsatisfactory.

5.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to tell his side of the story when he requested discharge, but he elected not to submit a statement in his own behalf.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an undesirable discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

7.  In view of the above, there is an insufficient basis to upgrade his undesirable discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20130014903



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ABCMR Record of Proceedings (cont)                                         AR20130014903



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