IN THE CASE OF:	  

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130019446 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that no consideration was given to his fragile state of mind upon his return from Vietnam or his prior honorable service.  He goes on to state that he should have been evaluated by mental health personnel as there was a requirement to do so.

3.  The applicant provides no additional documents with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in a five-page brief, in effect, that the applicant’s undesirable discharge be upgraded to at least a general discharge. 

2.  Counsel states, in effect, that the applicant suffered from Post-Traumatic Stress Disorder (PTSD) and he did not receive treatment for his disorder.  He also states the applicant was offered a discharge in lieu of trial by court-martial by a summary court officer who could not try the applicant for his offenses.  He continues by stating the applicant did not receive the complete mental and physical evaluation he needed and he is unable to receive the treatment he needs from the Department of Veterans Affairs (VA). 

3.  Counsel indicates that there are attachments with his brief; however, no additional documents were received with his brief.
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 enlisted in the Regular Army with a moral waiver on 2 January 1968 for a period of 3 years and training as a radio relay and carrier operator.  He completed his basic training at Fort Ord, California and his advanced individual training at Fort Gordon, Georgia before being transferred to Vietnam on 17 July 1968 for assignment to Company B, 459th Signal Battalion.

3.  The applicant went absent without leave (AWOL) during the period 9 February to 25 February 1969; however, the record is silent as to any punishment imposed for that unauthorized absence.

4.  He departed Vietnam on 1 August 1969 for assignment to Fort Carson, Colorado.  He arrived at Fort Carson on 13 September 1969 and on 1 October 1969, he went AWOL and remained absent in a desertion status until he was returned to military control at Fort Ord, California on 28 October 1971, where charges were preferred against him for his absence.

5.  On 16 November 1971, the applicant underwent a psychiatric evaluation who opined that there was no evidence of mental disease, defect or derangement sufficient to warrant disposition through medical channels.  He was capable of distinguishing right from wrong, adhering to the right, and he was cleared psychiatrically for appropriate administrative action.  

6.  The facts and circumstances surrounding the applicant’s administrative separation are not present in the available records as they were loaned to the VA in San Francisco, California in 1972.  However, his records do contain a duly authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 29 December 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served   1 year, 10 months, and 4 days of active service and he had 774 days of lost time due to being AWOL.

7.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

9.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered; however, they are not supported by the evidence submitted with his application or the evidence of record and the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.   Additionally, his contentions are not sufficiently mitigating to warrant relief when compared to the serious nature of the charges against him and the extensive length of his absence. His service did not rise to the level of a general discharge.  Accordingly, there appears to be no valid basis to approve his request for an upgrade of 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)                                         AR20130019446



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ABCMR Record of Proceedings (cont)                                         AR20130019446



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