RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012555 


	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

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Samuel Crumpler

Chairperson

Mr. Robert Rogers

Member

Mr. Patrick H. McGann Jr.

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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that at the time he was in the military he suffered from Post-Traumatic Stress Disorder (PTSD).  He states that PTSD was the cause of his problems while he was in the service.  The applicant further states that he was treated unfairly by his chain of command and that he worked hard and did his duty.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with the ending period 30 April 1975 and a VA Form 21-4138 (Department of Veteran Affairs Statement in Support of Claim), dated 10 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 April 1975.  The application submitted in this case is dated 10 August 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 enlisted in the Regular Army on 12 July 1972 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 64C (Motor Transport Operator).  

4.  On 11 December 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for stealing a pair of cufflinks from the Post Exchange.

5.  On 26 February 1974, the applicant accepted NJP under Article 15, UCMJ for being absent from his post.

6.  On 8 March 1974, the applicant accepted NJP under Article 15, UCMJ for moving about on the exterior edge of the building.
7.  On 3 April 1974, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order and failing to be at his appointed place of duty.

8.  On 20 December 1974, the applicant accepted NJP under Article 15, UCMJ for possessing a controlled substance.

9.  Evidence of record shows that the applicant was absent without leave (AWOL) for the period 25 February 1975 through 26 February 1975.

10.  On 24 March 1975, a Report of Medical Examination for the purpose of separation found the applicant physically fit for separation.

11.  On 25 March 1975, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separations) for unsuitability.  The reason cited by the commander was the applicant’s inadaptability.

12.  On 25 March 1975, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200 because of his record of 3 Articles 15, frequent absences, unkempt appearance, involvement with drugs and irate behavior.  The applicant declined counsel, waived his right to be heard by a board of officers, and declined to submit a statement on his own behalf.

13.  On 25 March 1975, a medical status evaluation found the applicant mentally responsible and medically fit.

14.  On 4 April 1975, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the day of 19 March 1975 and for disobeying a lawful order.

15.  On 15 April 1975, the applicant was discharged under the provisions of paragraph 13-5b(1) of Army Regulation 635-200 for unsuitability.  He had completed 2 years, 9 months, and 16 days of creditable active military service with 3 days of lost time due to AWOL.  His DD Form 214 shows in Item 9e (Character of Service) the entry "UNDER HONORABLE CONDITIONS."  

16.  A VA Form 21-6796 (Rating Decision), dated 27 March 1981, shows the applicant's request for a service connection disability was denied.  It was noted that he had a long and severe history of chronic drug abuse; and that his disability, dysthmic disorder (mental depression), was the result of his own willful misconduct (chronic drug abuse).
17.  A VA Form 10-1000 (Hospital Summary), dated 12 December 1981, shows that the applicant was diagnosed with paranoid schizophrenia with positive history of drug abuse.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5b(1), then in effect, contained the policy and outlined the procedures for separating individuals for unsuitability when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

19.  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.  

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he suffered from PTSD and that PTSD was the cause of his problems while he was in the service.  However, there is no evidence and the applicant has not provided evidence that shows he suffered from PTSD or that any mental disorder not the result of his drug abuse was the cause of his problems while serving in the military.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.


4.  The applicant's records show that he received six Articles 15 and had two instances of AWOL.  The applicant had completed 2 years, 9 months, and 
16 days of creditable active service and had 3 days lost due to AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 April 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 April 1978.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that 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

__SC ___  __RA ___  ___PHM_  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.




____ Samuel Crumpler___
          CHAIRPERSON



INDEX

CASE ID
AR20060012555
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.0135.0000
2.

3.

4.

5.

6.