RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011056 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to honorable or general. 

2.  The applicant states, in effect, that he served honorably in the Army and even in Vietnam until mental stress caused him to break down.  He contends that he was evacuated from Vietnam due to mental stress, that he was hospitalized, and that his mental condition was the reason why he missed days from the Army.  He also contends that he has been a good citizen since his discharge.  

3.  The applicant provides three character reference letters and a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 May 1971.  The application submitted in this case is dated 19 July 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted on 20 February 1969.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman).  

4.  On 10 May 1969, nonjudicial punishment was imposed against the applicant for failing to prepare for inspection.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.   

5.  The applicant arrived in Vietnam on 24 October 1969.   

6.  On 17 January 1970, while in Vietnam, nonjudicial punishment was imposed against the applicant for disobeying a lawful command.  His punishment consisted of a reduction to E-1 and a forfeiture of pay.   

7.  On 24 August 1970, while in Vietnam, the applicant was convicted by a special court-martial of three specifications of failing to obey a lawful command, failure to repair, being absent without leave (AWOL) from 26 June 1970 to 
4 August 1970, and assaulting a superior commissioned officer.  He was sentenced to be confined at hard labor for 3 months, to forfeit $60 pay per month for 3 months, and to be reduced to E-1.  On 21 September 1970, the convening authority approved the sentence.  

8.  The applicant was transferred to the United States on 18 November 1970.

9.  On 22 January 1971, nonjudicial punishment was imposed against the applicant for being AWOL from 13 January 1971 to 21 January 1971.  His punishment consisted of a forfeiture of pay.

10.  On 8 February 1971, the applicant went AWOL and returned to military control on 6 April 1971.  On 22 April 1971, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

11.  Information obtained from a 1992 Memorandum of Consideration states that “A routine medical clinic visit on 26 April 1971 resulted in a diagnosis of a situational anxiety reaction which was believed to be related to his impending administrative discharge action.” and “The applicant was administered a separation medical examination on 13 April 1971, at which time no significant defects or diagnoses were noted.  He was given a 111111 physical profile and determined to be medically qualified for separation.  In addition, it was determined that there were no reasonable grounds for belief that he was or ever had been mentally defective, deranged, or abnormal.” 

12.  On 30 April 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

13.  On 10 May 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 


14.  Accordingly, the applicant was discharged with an undesirable discharge on 
10 May 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year, 9 months, and 2 days of active service with 125 days of lost time due to AWOL and confinement.  

15.  In support of his claim, the applicant provided a letter from a Chief of Police. He attests that he has known the applicant for 30 years and that during this time he has never known of him being arrested for any felonies or crimes of domestic violence.  

16.  The applicant provided a character reference letter from his pastor.  He attests that the applicant is a good citizen with good character.  

17.  The applicant also provided a character reference letter from his brother.  He attests that the applicant was missing for several months in Vietnam, that he contracted malaria in Vietnam, and that he developed a mental condition due to the stress of his service in Vietnam.  He states that the applicant was evacuated to the United States and they received a call from the Army that he was alright and being treated.  He states that the applicant came home on leave and the Federal Bureau of Investigation came to his house asking about the applicant and told him that the applicant should not have been released from the hospital due to his condition.  He further states that applicant was suffering from stress and depression when he was at home and that his military service caused him to have the stress and depression which led to him receiving the type of discharge he received.      

18.  On 29 October 1976, the Army Discharge Review Board (ADRB) denied the applicant’s request for an honorable discharge.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  At the time, an undesirable discharge was normally considered appropriate. 

20.  Army Regulation 635-200, 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.  
21.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

22.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.   

23.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was suffering from a mental condition at the time of his discharge, medical evidence of record shows that he was found qualified for separation with a physical profile of 111111 and it was determined that there were no reasonable grounds for belief that he was or ever had been mentally defective, deranged, or abnormal. 

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.
 
3.  Since the applicant’s record of service included three nonjudicial punishments, one special court-martial, and 125 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 29 October 1976.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 28 October 1979.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

WP___  __PS____  __JP____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.


___William Powers_____________
          CHAIRPERSON




INDEX

CASE ID
AR20060011056
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710510
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.