BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140002300 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states he believes his chain of command did him an injustice.  He was told he would receive a general discharge if he signed the bar to reenlistment.  He knew he had problems in the military, but his problems didn't warrant a discharge under other than honorable conditions.  He was reduced to pay grade E-4 and told he had to receive a general discharge.  When he got out of the Army, he didn't want anything to do with the military.  Now he understands that he was exposed to Agent Orange in Vietnam and he has post-traumatic stress disorder (PTSD).  He would like to be compensated.  He was told he might be entitled to benefits based on his PTSD and exposure to Agent Orange if he served in Vietnam.

3.  The applicant provides:

* U.S. Army Europe Form 1107 (Bar to Enlistment/Reenlistment)
* bar to reenlistment statement
* bar to reenlistment memorandum
* DD Form 214 (Report of Separation from Active Duty)

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 on 31 May 1968 for a period of 3 years and was awarded military occupational specialty 13A (Field Artillery Basic).  On 2 March 1970, he immediately reenlisted for a period of 6 years.

3.  He served in Vietnam from 6 April 1969 to 24 March 1970 and in Germany from 20 January 1971 to on or about 12 December 1973.

4.  On 1 April 1971, nonjudicial punishment (NJP) was imposed against him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 1 April 1971.  He did not appeal the NJP.

5.  On 19 July 1971, NJP was imposed against him under the provisions of Article 15 of the UCMJ for an unidentified violation.  On 15 September 1971, the suspension of his reduction to the rank of specialist four for a period of 6 months was vacated.

6.  On 15 November 1971, NJP was imposed against him under the provisions of Article 15 of the UCMJ for missing unit movement on 12 November 1971.  He did not appeal the NJP.

7.  On 13 April 1972, his commander requested return of his dependents to the continental United States (CONUS) based on the applicant's failure to meet his obligations and action to vacate his present quarters.  He had received financial aid from the Red Cross twice and loans from Army Emergency Relief.  He had over $650.00 in bad checks and did not have the resources to pay these debts.  He was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  On 18 April 1972, he acknowledged his command's request for the return of his dependents to CONUS.  In view of the action pending against him, he felt his dependents should be returned to CONUS.

8.  On 5 May 1972, NJP was imposed against him under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 23 April 1971 and absenting himself from his unit on 27 April 1972 and remaining so absent until 28 April 1972.  He did not appeal the NJP.

9.  On 25 July 1972, he requested an exception to policy to reduce his 3-year overseas tour to 2 years based on the return of his dependents to CONUS.  He stated his dependents returned to CONUS based on his request.  The circumstances surrounding his family's early return to CONUS was the fault of disciplinary action against him and the adverse economic conditions in Germany.  He was no longer able to afford the cost of living because of his reduction in rank resulting from missing a troop movement.  He felt his problems were compounded by the Army's and his immediate commander's lack of understanding of his particular situation.

10.  On 29 July 1972, his commander recommended approval of his request for an exception to policy to reduce his overseas tour length.  His commander stated the command pressure to send his family home early was due to his recommended discharge for unfitness (failure to pay just debts) under the provisions of Army Regulation 635-212.  The recommendation for discharge under the provisions of Army Regulation 635-212 was withdrawn by the next higher headquarters and never forwarded or processed.  The major contention of the proposed discharge was excessive indebtedness; however, the creditors had been completely satisfied through repayment terms through allotments and by payroll attachment.  His financial status had improved such that his commander could not recommend him for discharge under the provisions of Army Regulation 635-212.  His commander stated a partial injustice had been done to the applicant causing family separation which could best be rectified by his early return to CONUS.  The next higher headquarters recommended approval of the applicant's request for an exception to policy and noted his problem was created by his own misconduct.  The next higher headquarters also noted the applicant was not advised to return his dependents to CONUS due to his pending discharge, but rather because they had been evicted from their residence due to nonpayment of rent.  On 28 September 1972, his request for an exception to policy to reduce his overseas tour length was approved and his eligibility date for return from overseas was adjusted to 13 June 1973.

11.  On 19 March 1973, NJP was imposed against him under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 16 March 1973.  He did not appeal the NJP.

12.  On 17 May 1973, a bar to reenlistment was initiated against him because of his record of NJP, outstanding debts, and insufficient support to his dependents.
13.  On 21 May 1973, a flag was initiated against him pending his separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.

14.  On 6 June 1973, he was notified of approval of a bar to reenlistment against him.  He was advised that the bar could be lifted if his unit commander observed a definite improvement in his conduct.  If the bar was lifted before he departed his unit for discharge, he could be eligible for an honorable discharge and reenlistment in the Army.  If the bar was not lifted, he could receive a general discharge at the expiration of his term of service and he would not be eligible for enlistment in any Armed Forces of the United States.

15.  On 14 June 1973, NJP was imposed against him under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 6 June 1973, 8 June 1973, and 13 June 1973.  On 6 July 1973, he appealed the NJP and stated he felt the punishment imposed was unjust.  He had been having financial problems since his arrival in January 1973.  His present battery commander had reduced him in rank and fined him heavily.  His battery commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, just 1 week prior to his normal eligibility date for return from overseas.  He believed his commander was unfavorably prejudiced against him.  His commander did not seek to help him with his financial problems and, in fact, made his problems worse.  His commander had virtually destroyed his Army career through his punitive actions.  He requested appropriate relief from NJP in the form of pay forfeitures.

16.  On 10 July 1973, a flag was initiated against him pending his trial by court-martial for writing bad checks.  The second interim review of this flagging action stated he elected discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

17.  His records do not contain a complete copy of his discharge packet.  Headquarters, U.S. Army Europe and 7th Army, Special Orders Number 340, dated 6 December 1973, show he was reassigned to the transfer point for separation processing with a reporting date of 13 December 1973.  The special instructions state he was being discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and he would be issued an Undesirable Discharge Certificate.  Headquarters, U.S. Army Personnel Center, Fort Jackson, SC, Special Orders Number 253, dated 12 December 1973, discharged him under other than honorable conditions for the good of the service under the provisions of Army Regulation 635-200, chapter 10.

18.  His DD Form 214 shows he was discharged under other than honorable conditions on 12 December 1973 under the provisions of Army Regulation 
635-200, chapter 10, and he was issued an Undesirable Discharge Certificate.  He completed 5 years, 6 months, and 12 days of active service.

19.  His records do not contain a copy of a separation physical examination.  His records do not contain any evidence that he was exposed to Agent Orange while serving in Vietnam or was diagnosed with PTSD or any other mental condition at any time during his active duty service.

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

	a.  Chapter 10, 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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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.

	b.  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 applicant contends that he was told he would receive a general discharge if he signed the bar to reenlistment.  The evidence shows he was notified of approval of a bar to reenlistment against him on 6 June 1973.  He was advised that if the bar was not lifted, he could receive a general discharge at the expiration of his term of service and he would not be eligible for enlistment in any Armed Forces of the United States.

2.  The evidence shows NJP was imposed against him on at least four occasions prior to imposition of the bar to reenlistment.  Following his bar to reenlistment, his conduct did not improve and he was ultimately pending trial by court-martial for writing bad checks.  He elected discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He did not complete his current term of enlistment and the bar to reenlistment was not lifted.

3.  Although his complete discharge packet is not available for review, the preponderance of the evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Although his records do not contain a copy of a separation physical examination, there is no evidence that he was exposed to Agent Orange while serving in Vietnam or was diagnosed with PTSD or any other mental condition at any time during his active duty service.  He provides no evidence now to show he has been diagnosed with a service-connected PTSD or other mental condition.

5.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading his discharge.

6.  The applicant completed a period of honorable active service from 31 May 1968 to 1 March 1970.  He is advised to contact the Department of Veterans Affairs to determine his eligibility for benefits based on his service in Vietnam from 6 April 1969 to 24 March 1970.

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)                                         AR20140002300



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