IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130016059 


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 he knows that he was absent without leave (AWOL) during Vietnam, but despite repeated requests for help no one would assist him with his mental health conditions.  An upgrade of his discharge would allow him to apply to the Department of Veterans Affairs (VA) for medical benefits and compensation for his exposure to Agent Orange.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 27 July 1967 and 23 January 1970
* Undesirable Discharge Certificate
* VA Form 21-4138 (Statement in Support of Claim) with allied documents

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 8 February 1965, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 64A (Light Vehicle Driver).

3.  He served in Vietnam from 16 March 1966 – 13 March 1967.  He was honorably discharged on 27 July 1967 and reenlisted on 28 July 1967.

4.  He accepted nonjudicial punishment (NJP) for:

* failing to go to his appointed place of duty on 5 August 1967 
* being AWOL from 22 to 23 January 1968 

5.  Special Court-Martial Order Number 1, 16th Engineer Battalion, 1st Armored Division, Fort Hood, TX, dated 4 January 1968 showing the applicant pled guilty and was found guilty of being AWOL from 27 November through 7 December 1967.

6.  Headquarters, Special Troops, U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, LA, issued:

	a.  Special Court-Martial Order Number 1062, dated 26 August 1968 showing the applicant pled guilty and was found guilty of being AWOL from 4 March through 14 August 1968; and

	b.  Special Court-Martial Order Number 859, dated 13 June 1969 showing the applicant pled guilty and was found guilty of being AWOL from 4 April through 
1 May 1969 and from 2 May through 2 June 1969.

7.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he had the following lost time:

* 27 November to 6 December 1967 (AWOL)
* 22 January 1968 (AWOL)
* 4 March to 2 April 1968 (AWOL)
* 3 April to 14 August 1968 (Dropped from the Rolls)
* 21 August to 12 September 1968 (Confinement)
* 6 July to 12 October 1969 (AWOL)
8.  Court-martial charges were preferred against him for being AWOL from on or about 6 July to 10 October 1969.

9.  On 26 November 1969, the applicant consulted with counsel who advised him of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the procedures and rights available to him.

10.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

	a.  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  He indicated he would not submit a statement in his own behalf.

11.  On 28 November 1969, he completed a physical examination in which he noted having frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble.

12.  The medical physician did not note any psychiatric abnormalities during the applicant's examination and found him qualified for separation.

13.  On 29 December 1969, the separation authority approved his request and directed that he be issued an Undesirable Discharge Certificate.  On 23 January 1970, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 4 years, 1 month, and 27 days of total active service with 295 days of lost time.

14.  He provides his VA Statement in Support of Claim, dated 22 August 2013, wherein he contends that when he left Vietnam, he was seen by a psychiatrist.  He contends that he had PTSD but he never received any medical assistance.  The available medical records are void of any evidence that he sought help for a mental health condition during his period of service.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  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 would normally be furnished 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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  There is insufficient evidence to support the applicant's contentions that he was exposed to Agent Orange or that he suffered from PTSD or any other mental conditions at the time.

3.  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, an offense 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.  His record shows he was well advised and fully aware of the consequences of his decision.

4.  Based on his extensive periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his 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)                                         AR20130016059





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ABCMR Record of Proceedings (cont)                                         AR20130016059



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