IN THE CASE OF:  	  

		BOARD DATE:  9 October 2014  	  

		DOCKET NUMBER:  AR20140003283 


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 upgrade of his bad conduct discharge (BCD) to a general under honorable conditions discharge.

2.  He states he was severely affected by Post-Traumatic Stress Disorder (PTSD) in Vietnam.  

3.  He provides:

* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Letters of support

4.  Although he lists counsel on his application, counsel provides no additional statement of evidence on behalf of the applicant.  

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 3 August 1962 and was honorably discharged on 3 August 1964 for immediate reenlistment.  He reenlisted on 4 August 1964.

3.  On 28 September 1965, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to report for guard duty.

4.  He served in Vietnam from 12 April 1966 to 11 April 1967.  

5.  His disciplinary history includes convictions by special court-martial on three occasions for being absent without leave (AWOL) during the following periods:

* 18 May to 2 August 1967
* 29 September to 24 November 1967
* 2 November 1968 to 12 January 1969
* 12 to 15 February 1969

6.  On 15 March 1972, he was found guilty, contrary to his plea, by a special 
court-martial of being AWOL from 9 May 1969 to 9 January 1972.  He was sentenced to confinement at hard labor for 4 months, forfeiture of $150.00 pay per month for 6 months, and to be discharged from the service with a BCD.  

7.  His DA Form 20 (Enlisted Qualification Record) shows he was in an AWOL status from 16 January to 18 March 1972 after his expiration term of service.

8.  On 19 April 1972, the convening authority approved only so much of the sentence as provided for a BCD, total forfeiture of $150.00 pay per month for 4 months, and confinement at hard labor for 2 months.

9.  The U.S. Army Court of Military Review's affirmation of the findings of guilty are not present in his records.

10.  On 3 August 1972, his BCD was ordered executed in Special Court-Martial Order Number 63 issued by Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, WA.

11.  He was discharged on 18 August 1972 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, by reason of other than desertion (court-martial).  He completed 4 years, 3 months, and 11 days of total active military service with over 1,300 days of lost time.

12.  He provided a VA Form 21-4138 dated 24 January 2014 along with other statements from his brother and friends in support of his claim.  

	a.  He stated he enlisted in the Army in 1962 as a private and reenlisted in 1964 as an E-5.  In 1966, he volunteered for service in Vietnam and he served one tour.  While on assignment to Vietnam, his wife had a psychotic break and she disappeared with his child.  After he returned, he took leave to settle some family problems.  At the expiration of his leave, he requested an extension which was denied.  He went AWOL three times in search of his family.  He was court-martialed each time he returned to service (3 times).  While in Trustee Barracks at Fort Riley, KS, he went through reprogramming training.  After his release, he went to Fort Lewis which was close to his family problems and his military occupational specialty (MOS).  When he arrived, he was denied a 72-hour pass which was approved and he left or went AWOL.  This resulted in a third court-martial and a BCD.  He was in need of mental health services as a direct result of PTSD and grieving the loss of his family.  Had he been treated for PTSD, he was sure the behavior would have been much different.  Instead, he was disciplined.  He believes his discharge was inequitable because of the influence of PTSD acquired in Vietnam.

	b.  In a 21 August 1996 letter, his brother stated that the applicant had not been himself since he returned from the Vietnam War.  Prior to the applicant's combat experiences in that lamentable war in which more than 50,000 of our men died, his brother showed a love of country and respect for authority.  He described his brother as a hard worker who showed promise of becoming a pretty average guy holding down a solid blue-collar job with his whole future in front of him.  He stated the applicant became a changed human being after he went to Vietnam in tough combat areas.  The applicant has suffered from alcoholism, frequently become enraged while intoxicated, and threatened any form of authority figure, such as police authorities.  While his brother is a talented auto mechanic, he becomes distracted by memories of the Vietnam War and unable to complete projects.  His brother's family members suffered along with him and he believes the applicant's experience in the Vietnam War had a significant impact of the divorces he went through.  He also believes his brother to be suicidal at times.  


	c.  His friends stated they had known the applicant for 30 years and noticed the applicant was a different person since he went to Vietnam.  He is described now as irrational at times, not clear when talking, hard to get along with, withdrawn from people, nervous at times, and short-tempered.  

13.  His service record is void of medical documentation which indicates he had been diagnosed with any type of mental health issues prior to his discharge.  He did not provided any evidence in support of his claim that he has been diagnosed or treated for PTSD.  

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

	a.  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.

	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.

	c.  Paragraph 3-11 states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record does not indicate and he has not provided any evidence that shows he was diagnosed then or now with any mental health condition that may have contributed to his misconduct while he was serving on active duty.
2.  His service record shows he received one Article 15 and three convictions by a special court-martial for being AWOL for approximately 300 days.

3.  He was also convicted by a special court-martial of being AWOL for over 1,000 days.  As a result, he was sentenced to be discharged with a BCD.  His trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  Based on the seriousness of the misconduct for which he was convicted, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his 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)                                         AR20140003283





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ABCMR Record of Proceedings (cont)                                         AR20140003283



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