RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:  7 February 2008	  
	DOCKET NUMBER:  AR20070013696 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 (UD), characterized as under other than honorable conditions, be upgraded to a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he was diagnosed as having PTSD (Post Traumatic Stress Disorder).  He attempted suicide and should have been given a medical discharge.  

3.  The applicant provides a copy of an appeal, Number 01-7074, from the United States Court of Appeals for the Federal Circuit; and copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 February 1970 and 15 April 1971, in support of his request

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's record shows he was inducted in the Army of the United States on 28 May 1968.  He successfully completed basic combat training and advanced individual training at Fort Campbell, Kentucky.  He was awarded the military occupational specialty (MOS), 94B (Cook).  He was promoted to specialist four/pay grade E-4 on 7 September 1969.

3.  The applicant served in Vietnam from 11 February 1969 to 10 February 1970. He served until he was honorably released from active duty on 11 February 1970.  

4.  After a break-in-service, he enlisted in the Regular Army on 5 August 1970.  He served in Vietnam from 10 September 1970 to 15 April 1971.

5.  Between 17 October 1970 and 24 February 1971, he received nonjudicial punishment on five occasions under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty on four occasions, for failing to obey a lawful order from a senior noncommissioned officer on two occasions, for leaving his appointed place of duty, for operating a military vehicle in a reckless manner, and for failing to go to his appointed place of duty.  His punishments consisted of a reduction to pay grade E-3, E-2 and E-1, forfeitures of pay, detention, and restriction and extra duties.

6.  On 28 February 1971, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-212, for unfitness.  

7.  On the same date, the applicant acknowledged the notification and after consulting with counsel, he waived his rights and elected not to submit a statement in his own behalf.

8.  On 9 March 1971, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unfitness.  He based his recommendation on the applicant's frequent incidents of a discreditable nature with civil or military authorities.  

9.  On 23 March 1971, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an undesirable discharge.  

10.  The applicant was discharged on 15 April 1971, in pay grade E-1.  He had 2 years, 4 months, and 25 days of total active service.  

11.  The applicant's medical records are unavailable for review, in particular, the psychiatric evaluation he underwent in connection with this involuntary discharge.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant provides a copy of his appeal from the United States Court of Appeals for the Federal Circuit, dated 1 October 2001, Number 01-7074.  The appeal indicated that on 11 May 2000, the Board of Veterans' Appeals denied the applicant's claim for service connection for a chronic acquired psychiatric disorder.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7a, also provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was based on his frequent incidents of a discreditable nature with civil or military authorities, which included nonjudicial punishment on five occasions, under Article 15, UCMJ.  These violations contributed to and served as a basis for his discharge under the provisions of Army Regulation 635-212, for unfitness.  He was issued an UD.

2.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.

3.  The applicant alleges that he attempted suicide and should have been given a medical discharge instead of being discharged under the provisions of Army Regulation 635-212, for unfitness.  There is no evidence in the applicant's records, and he has provided none, to show that he attempted suicide while serving on active duty.

4.  The applicant's medical records are unavailable for review.  It should be noted he was required to pass a physical examination for reenlistment purposes.  
There is no evidence, and he has provided none, to show that he was diagnosed with PTSD during his first period of service or his second period of service.  A copy of his reenlistment physical is also not available in his service records.  

5.  The evidence provided by the applicant regarding his appeal was considered; however, it does not support an upgrade of his undesirable discharge to a general discharge, under honorable conditions. 

6.  The evidence of record clearly shows that it has been more than 36 years since he received his UD.  However, there is no evidence in the applicant's records, and the applicant has provided none, to show that he attempted to or applied for an upgrade of his discharge to the ADRB within that board's 15-year statute of limitations.

7.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to a general discharge, under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___QS__  __RML__  __WDP__  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.




____William D. Powers_____
          CHAIRPERSON
INDEX

CASE ID
AR20070013696
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710415
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.


The applicant provides a copy of his appeal from the United States Court of Appeals for the Federal Circuit, dated 1 October 2001, Number 01-7074.  The appeal indicated that on 11 May 2000, the Board of Veterans' Appeals denied the applicant claim for service connection for a chronic acquired psychiatric disorder and his claim that new and material evidence had been presented as to bilateral hearing loss.  The board also remanded two additional claims.  The applicant appealed to the Court of Appeals for Veterans Claims, and the Secretary moved for remand.  The applicant opposed.  The Court of Appeals for Veterans Claims granted the Secretary's motion, vacated by the board's decision, and remanded for readjudication of the applicant's claim consistent with the Veterans Claims Assistance Act of 2000.  The document also indicated that the case did not fall within the "collateral order exception" to the final judgment rule because the applicant may later obtain review from any adverse final judgment of the Court of Appeals for Veterans Claims that falls within their jurisdictional mandate.