IN THE CASE OF: BOARD DATE: 29 March 2012 DOCKET NUMBER: AR20120001118 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, through his Member of Congress, reconsideration of his earlier request for an upgrade of his under other than honorable condition discharge. 2. The applicant states: * The reason he was never treated for psychological conditions in the Army was because his pleas to his commanding officer were never acted upon * After being involved in so many battles in Vietnam, he fell ill after his tour * He then served as a security guard on General Abrams' personal detail * Upon arrival at Fort Dix, NJ, he was assigned to a burial detail which made his mental and psychological condition even worse * He continued to ask his commanding officer for help but he was refused * He became desperate and left in an absent without leave (AWOL) status * He was not getting the needed help; the chain of command's actions forced him to make this choice * The Board may not have considered that there was a war going on at the time * Considering his combat service in Vietnam, the horrors he witnessed, and the treatment he received upon his return, it appears the Board reached the wrong conclusion in his case 3. The applicant provides two medical statements. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100025368, dated 12 May 2011. 2. The applicant provides a new argument and two medical statements which were not previously considered by the Board; therefore, they are considered new evidence and will be considered by the Board. 3. He enlisted in the Regular Army on 14 September 1970 and he held military occupational specialty 95B (military police). He served in Vietnam from 4 March 1971 to 24 January 1972. 4. He was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Two overseas service bars * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Pistol Bar 5. Upon completing his Vietnam tour, he was reassigned to the 412th Military Police Company at Fort Dix. While at Fort Dix, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 7 June 1972 for being AWOL from 29 May to 6 June 1972 * 27 June 1972 for being AWOL from 20 to 27 June 1972 * 2 November 1972 for being AWOL from 12 July to 30 October 1972 6. On 7 November 1972, his immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his history of AWOL and NJP. Additionally, the immediate commander stated the applicant had been counseled by him (the commanding officer), the unit first sergeant, and the platoon sergeant on 7 different occasions for his poor attitude and performance and below standard potential for retention. 7. On 21 November 1972, the approval authority approved the applicant's bar to reenlistment and advised him that the bar would be voided if he proved his worthiness for retention in the Army. He was also advised that his performance would be observed and monitored. If his performance and character did not improve, he would be subject to elimination from the Army. 8. On 18 January 1973, the applicant again departed his unit in an AWOL status and on 19 January 1973, he was dropped from the rolls of the Army as a deserter. On 15 August 1973, he was apprehended by officials of the Federal Bureau of Investigation (FBI) at Whitestone, NY and he was returned to military control at Fort Dix. 9. On 28 August 1973, his command preferred court-martial charges against him for violating Article 86 of the UCMJ for being AWOL from 18 January 1973 to 15 August 1973. 10. On 28 August 1973, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. 11. In his request for discharge he indicated he was making the request of his own free will and he had not been subjected to any coercion by anyone. He also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 12. On 30 August 1973, he underwent a separation medical examination at Fort Dix. The military doctor found him medically qualified for separation. 13. On 6 and 7 September 1973, his chain of command, including his immediate, intermediate, and senior commanders, recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate. 14. On 8 September 1973, the separation authority approved the applicant's request for voluntary discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 15. The applicant was accordingly discharged on 13 September 1973. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time, as corrected by a DD Form 215 (Correction to DD Form 214), dated 18 August 2011, shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with the issuance of an Undesirable Discharge Certificate. This form confirms he completed 2 years and 22 days of total active service with 344 days of time lost. 16. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. 17. He provides two documents: a. A medical statement, dated 29 February 2012, from Dr. E.D. H---, who states the applicant is a patient of his in the Memory Disorder Clinic in the New York state Psychiatric Institute and that his symptoms are consistent with a diagnosis of Amyotrophic Lateral Sclerosis (ALS) – Frontotemporal Dementia who will require ongoing assistance to perform his activities of daily living. b. A medical document, dated 30 January 2012, from Dr. T. F-----, who states the applicant had been under her care for the past 4 years and his diagnosis a fronto-temporal dementia with superimposed probable progressive ALS, that is slowly progressive. 18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 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 an individual who was discharged for the good of the Service. 19. Army Regulation 635-200, further provides in: a. paragraph 3-7a, 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, 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. 20. According to the Manual of Court-Martial, the maximum punishment for violating Article 86 of the UCMJ (in cases of AWOL for more than 30 days) is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. With respect to his arguments: a. the applicant's service in Vietnam is noted. The applicant and all others concerned should know that its action in no way diminishes the sacrifices made by him in service to our Nation. He and all Americans should be justifiably proud of his service in arms. b. the applicant chose to go AWOL on multiple occasions. Likewise, he was counseled on at least seven occasions by his chain of command; however, he chose not to change his attitude about his mission and the Army. Finally, when court-martial charges were preferred against him, he could have elected trial by a court-martial if he felt he was innocent of the charges; but, he again chose a voluntary discharge. c. the applicant's current medical condition is regrettable. However, prior to his discharge, he underwent a separation physical at Fort Dix and he was found medically qualified for separation. There is no evidence of record that shows he suffered from a medical or a mental condition that caused him to go AWOL on multiple occasions. d. the circumstances at the time, including the horrors of the war were noted. However, unlike the thousands of Vietnam service members who experienced similar circumstances but served honorably and completed their military service, the applicant chose to go AWOL. 3. An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and the under honorable conditions (general) characterization is appropriate to those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The applicant's military service was marred with misconduct. 4. Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20100025368, dated 12 May 2011. __________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) AR20120001118 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120001118 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1