IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130018875 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge or a general discharge.

2.  The applicant states, in effect, that he had a period of honorable service in Vietnam prior to the period of service in question.  He states that his problems began upon returning from Vietnam and it was not until just about 1 year ago that he realized he was suffering from post-traumatic stress disorder (PTSD).  He has been granted a 30 percent disability rating for service-connected PTSD and he is requesting that this be used as the basis for upgrading his undesirable discharge.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 July 1970
* DD Form 214 for the period ending 5 July 1973
* Certification of Military Service
* Department of Veterans Affairs (VA) Rating Decision
* self-authored statement 
* three letters of support

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 September 1969, he was inducted into the Army of the United States.  He was awarded military occupational specialty 64B (Heavy Vehicle Driver).  On 16 February 1970, he was assigned to Vietnam.  On 13 July 1970, he was honorably discharged for the purpose of immediate enlistment.  

3.  On 14 July 1970, while in Vietnam, he enlisted in the Regular Army for
3 years.  The highest rank he held was specialist four/pay grade E-4.

4.  On 18 February 1971, his company commander imposed nonjudicial punishment (NJP) against him under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his unit in Vietnam from 
13-14 February 1971.

5.  On 17 September 1971, he departed Vietnam enroute to the United States and he was assigned to Fort Hood, TX.

6.  His company commander imposed NJP against him under Article 15, UCMJ, on three occasions in 1972 for failing to go at the time prescribed to his place of duty.

7.  A DD Form 458 (Charge Sheet) shows he was charged with being AWOL from 11 August 1972 to 4 June 1973.

8.  On 15 June 1973, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of an undesirable discharge if his request was approved under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel); and of the rights available to him.  




9.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.

	a.  He acknowledged that:

* he had not been subjected to coercion with respect to his request for discharge
* 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 submit a statement in his own behalf.  In that statement he indicated that he joined the Army because he desperately needed the money.  After joining the Army he lost his wife and two children.  He had so many problems he became an alcoholic.  The main reason he wanted a discharge was because his father and mother were getting a divorce and his father was in very ill health.  The doctors said his father didn't have much longer to live and he was the only person left to care for him.  He wanted to spend the last days with his father and he would continue to go AWOL if he was not discharged.

10.  On 25 June 1973, the separation authority approved the applicant's request for discharge and directed that he be given an Undesirable Discharge Certificate.

11.  On 5 July 1973, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  The DD Form 214 he was issued for this period of service shows he was awarded the Army Commendation Medal with Oak Leaf Cluster.  He completed a total of 2 years, 1 month, and 28 days of net service this period with 298 days of lost time.

12.  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.




13.  He provides:

   a.  A self-authored statement wherein he states he completed basic training, advanced individual training, and heavy truck training.  He was assigned to hauling duties in Vietnam where he rose in rank very quickly and was always complimented by his commanding officer for doing a great job.  He also described some instances of horrible sights he encountered that still haunt him to this day.  He states that following his return from Vietnam he was constantly in trouble with his drinking and self-medicating.  His life had been downhill ever since.  In 2009 he was diagnosed with PTSD.  He got into counseling and Alcoholics Anonymous and has been sober ever since.  He has been employed at Shaffer's Restaurant for 4 years, which for him is a great accomplishment since returning from Vietnam.  He now owns his own home for the first time.  He is continuing with his counseling and Alcoholics Anonymous meetings. 

   b.  A VA rating decision showing he was assigned a 30 percent disability rating for service-connected PTSD effective June 2012.
   
   c.  Letters of support from his place of employment attesting to his dependability as an employee and a letter from Recovery Services of Northwest Ohio indicating his symptoms of PTSD were being treated through psychotherapy sessions.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 1 of the version in effect at the time stated the type and character of separation issued upon administrative separation from current enlistment or period of service would be determined solely by the member's military record during that enlistment or period of service, plus any extensions thereof prescribed by law or by the Secretary of the Army, or accomplished with the consent of the member.

   b.  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 to an individual who was discharged for the good of the Service. 

   c.  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.
	
   d.  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 evidence of record does not support the applicant's request for an upgrade of his undesirable discharge to an honorable or general discharge.

2.  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 received NJP for being AWOL and multiple occasions of failing to go at the time prescribed to his place of duty.  He was charged with being AWOL for a lengthy period of time, 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 decisions.

3.  Due to his record of indiscipline to include 298 days of lost time, his conduct and performance during his second period of service were unsatisfactory.  Although he served honorably during his first enlistment, the characterization of his service for his second enlistment was properly determined solely based on his military record during that period of enlistment.

4.  His contention that service-connected PTSD should be considered a mitigating factor in his request was carefully considered.  However, there is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization for his second period of service.  Therefore, there is an insufficient basis upon which to grant 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)                                         AR20130018875



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ABCMR Record of Proceedings (cont)                                         AR20130018875



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