IN THE CASE OF

		BOARD DATE:	    29 July 2014

		DOCKET NUMBER:  AR20130021516 


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 correction of his military records by upgrading his undesirable discharge to general, under honorable conditions and restoring his rank and pay grade.

2.  The applicant states he was a good Soldier.  He served in the Republic of Vietnam (RVN) for 13 months where he was promoted through the ranks to “SGT 1st Class E6.”  He received the Bronze Star Medal and other commendations.  He came back to the United States an alcoholic who was full of rage and regrets over some situations that occurred in the RVN.  He believes that his less than honorable discharge was the result of his having post-traumatic stress disorder (PTSD).  The adrenalin and anger he came back with became very misplaced.  He left the Army and has regretted that decision for over 40 years.  At the time, he fought anyone and everyone.  Once he was surrounded by police in a parking lot and he told them to just shoot him.  Another time he became furious because another driver had been stopped too long in the middle of the street to talk to someone.  He rammed the driver’s car and pushed him for more than a block.  While in the psychiatrist’s office, he threw a chair through the window and then left.  These events happened more than 30 years ago.  He is not the same man today.  However, there is a constant shadow over his life because of his undesirable discharge.  He is not saying he was totally blameless in some of his actions but does say that at the time he needed help that he did not receive.  As a result, he was not able to maintain proper control of himself.



3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 13 January 1971
* DD Form 214 effective 13 November 1972
* Progress Notes, Indianapolis, IN Department of Veterans Affairs (VA) Medical Clinic, dated in 2008 and 2009

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 6 February 1968, the applicant enlisted in the Regular Army.  He was trained as a wheeled vehicle mechanic.

3.  The applicant served in the RVN from about 20 June 1969 to 16 June 1970.

4.  On 13 January 1971, the applicant was honorably discharged for the purpose of an immediate reenlistment.

5.  The applicant accepted nonjudicial punishment (NJP) on 16 March 1972 for failing to go at the time prescribed to his appointed place of duty.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows the applicant was absent without leave (AWOL):

a. for 8 days from 25 July to 1 August 1972; and

b. for 48 days from 3 August to 19 September 1972.

7.  The discharge packet is missing from the applicant’s military records.  However, his DD Form 214 shows that he was administratively discharged on 
13 November 1972, under the provisions of Army Regulation 635-200, for the good of the service.  His service was characterized as under conditions other than honorable.  He completed a total of 4 years, 7 months and 13 days of creditable active duty service and had 56 days of lost time.

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

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An undesirable discharge was 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 (emphasis added), 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.  

11.  The VA Progress Notes provided by the applicant indicate he was under psychiatric care beginning in 2008.  He stated in one of his sessions that in 1970 while on a convoy in the RVN to deliver supplies, it was shot at and stopped.  A 1st Cavalry unit came to help.  A rocket hit and a man flew into the air.  He regrets that the man was left behind.  He believes instead of receiving the Bronze Star Medal, he should have been disciplined.  After that incident he got angry, 

came home and stayed in the bottle.  He stated a doctor explained to him that he may have PTSD.  He stated he had started smoking marijuana and drinking in the late 1960’s and continued until 1983.  He had a stroke in 1998 which took the meanness out of him.  He further stated that he got an undesirable discharge because he was AWOL in Colorado after he returned from the RVN.  He told the Army he no longer wanted to be in the military.  He was plagued with excessive alcohol use and unresolved guilt about leaving that Soldier behind.  His diagnosis included:

* Adjustment disorder with dependent mood 
* Alcohol dependence in remission
* Anger and irritability 
* Desire to quit smoking
* Major depression, recurrent
* Feelings of sadness, discontent, anger or displeasure

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by upgrading his undesirable discharge to general, under honorable conditions and restoring his rank and pay grade.  He argues that he was a good Soldier who returned from the RVN with PTSD.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  The applicant’s contention that his misconduct was due to his having PTSD is not sufficiently documented to allow for such a determination.  The applicant has not provided convincing evidence showing his actions surrounding his discharge were the result of PTSD.

4.  In view of the above, the applicant's 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 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)                                         AR20130021516



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021516



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1