IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005980 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 under other than honorable conditions discharge. 2. The applicant states, in effect: * he requires access to healthcare due to illnesses incurred during his service in Vietnam * he is seeking to be permitted to enter a nursing home for Veterans * he is a Purple Heart recipient 3. The applicant provides: * DA Form 2139 (Military Pay Voucher) * DA Form 2496 (Disposition Form) * (illegible) Form 10 (Notice of Restriction from Installation) * Special Orders (SO) Number 219, dated 12 November 1975 * two memoranda, dated 12 November 1975 * Undesirable Discharge Certificate, dated 14 November 1975 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 was inducted into the Army of the United States on 4 October 1968. 3. His available service record contains the following documents: a. DA Form 20 (Enlisted Qualification Record). (1) Item 31 (Foreign Service) shows he served in Vietnam from on or about 17 March 1969 to on or about 17 September 1969. (2) Item 38 (Record of Assignments) shows: * conduct and efficiency ratings were excellent between 4 October 1968 and 12 September 1969; there are no entries after September 1969 * while in Vietnam, he was assigned to Company A, 3rd Battalion, 21st Infantry Regiment, 196th Infantry Brigade, from on or about 5 April 1969 to on or about 16 June 1969 * on or about 17 June 1969 he is shown as being in a patient status and remained in this status until 11 September 1969 * on or about 12 September 1969, he was assigned to Headquarters and Headquarters Company, U.S. Army Training Center, Infantry, Fort Bragg, NC (3) Item 40 (wounds) shows he was wounded twice: * in the neck on 14 May 1969 * burns to his chest and face on 14 June 1969 b. DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), administered on 27 January 1969 for one specification of failing to go to his appointed place of duty at the time prescribed. His punishment consisted of a forfeiture of $23 per month for 1 month, 14 days extra duty, and 14 days restriction. c. General Orders (GO) Number 3894, dated 22 May 1969, issued by Headquarters, Americal Division, awarded him the Purple Heart (1st Award) for wounds incurred on 14 May 1969. d. GO Number 138, dated 15 June 1969, issued by Headquarters, 95th Evacuation Hospital (Surgical - Mobile (SMBL)), awarded him the Purple Heart (2nd Award) for wounds sustained on 14 June 1969. (GO Number 53, dated 24 June 1969, issued by Headquarters, 106th General Hospital gave the applicant a duplicate Purple Heart (2nd Award)). 4. On 18 September 1969, he departed his unit at Fort Bragg, NC in an absent without leave (AWOL) status. He was dropped from the rolls as a deserter on 23 October 1969. He returned to military control on 4 September 1975 and was assigned to the U.S. Army Personnel Control Facility at Fort George G. Meade, MD. 5. On 16 September 1975, his commander preferred court-martial charges against him for being AWOL from 18 September 1969 to 5 September 1975. 6. Also on 16 September 1975, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 6. In his request for discharge, he indicated he: * was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * understood by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * elected not to submit a statement in his own behalf 7. On 5 November 1975, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge. On 14 November 1975, he was discharged accordingly. 8. His DD Form 214 (Report of Separation from Active Duty) states he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. This form reflects he completed 1 year, 1 month, and 5 days of active service. He had 2197 days of lost time (6 years and 6 days). Also on his DD Form 214, it shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Combat Infantryman Badge * Purple Heart (1st Award) * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * Marksman Marksmanship Qualification Badge with Machine Gun Bar (M-60) 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is 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 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. The applicant 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 the rights of the applicant were fully protected throughout the separation process. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider, in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 3. The applicant indicates in his application that he is suffering from medical conditions incurred during his service in Vietnam. It is possible post-traumatic stress disorder (PTSD) is among these conditions, however he provides no evidence as to the nature of his illnesses. If he is able to offer evidence of PTSD within 1 year of the Board's decision, his case could be reconsidered. 4. When his substantial period of AWOL is taken into account, his service does not meet the standards of acceptable conduct consistent with either an honorable or general discharge. As such, it does not appear there is sufficient evidence to support the granting of his request. 5. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veteran's benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR. 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) AR20150005980 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005980 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1