IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080001521 


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 that his discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he served in Vietnam and has Post-traumatic Stress Disorder (PTSD) flashbacks.  He believes that his type discharge was wrong then and is still wrong today.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 28 June 1973.

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 enlisted in the Regular Army on 9 March 1970 for a three year term of service.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 64A (Light Vehicle Driver).

3.  The applicant's records show that he was absent without leave (AWOL) for the periods 10 July 1970 through 11 July 1970, 16 August 1970 through 
17 August 1970, 17 September 1970 through 19 September 1970, 7 January 1971 through 11 January 1971, and 26 March 1971 through 29 March 1971.

4.  The applicant arrived in Vietnam and was assigned to the 3rd Brigade (Separate), 1st Cavalry Division, on or about 7 April 1971.  

5.  On 13 November 1971, the applicant was convicted, pursuant to his pleas, by a special court-martial of wrongfully possessing traces of heroin, wrongfully possessing a .45 caliber pistol, wrongfully possessing an ax, and wrongfully communicating a threat to a commissioned officer.  His sentence consisted of a bad conduct discharge (remitted), confinement at hard labor for three months, a forfeiture of $75.00 pay per month for three months, and reduction to the lowest enlisted grade.

6.  The applicant departed Vietnam on or about 28 January 1972.

7.  The applicant's records show that he was AWOL for the periods 6 March 
1972 through 21 March 1972 and 1 May 1972 through 3 May 1972.  His records further indicate that he was confined by civil authorities for the period 30 May 
1972 to 26 September 1972.

8.  On 31 October 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for the period 24 October 1972 through 30 October 1972.

9.  On 29 January 1973, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unfitness.  The reasons cited by the commander were the applicant's numerous AWOLs, his record of disciplinary actions, accumulated days of bad time, and results of a psychiatric report.

10.  On 31 January 1973, 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, chapter 13.  The applicant requested counsel, requested to be heard by a board of officers, and declined to submit a statement on his own behalf.

11.  On 27 March 1973, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 3 March 1973 through 14 March 1973.

12.  On 28 March 1973, the applicant was barred from reenlistment due to numerous instances of misconduct. 

13.  On 10 May 1973, a Board of Officers was held and the board members recommended the applicant be discharged from the service because of unfitness, with issuance of an Undesirable Discharge Certificate. 

14.  On 4 June 1973, the appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unfitness.  On 
28 June 1973, he was separated from the service after completing 2 years, 
7 months, and 3 days of creditable active service with 236 lost days due to AWOL and confinement.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals for unfitness 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.

16.  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 served in Vietnam, that he suffers from PTSD flashbacks, and that the type of discharge he received was wrong.  However, serving in Vietnam alone is not a basis for upgrading a discharge.  Review of the applicant's records show his misconduct occurred prior to, during, and after his service in Vietnam.  There is no evidence and the applicant has not provided evidence that shows he has PTSD or that all his misconduct was the result of PTSD.  Therefore, there is insufficient bases to support these arguments.  
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.  Evidence of record shows that the applicant received two Article 15s, that he was convicted by special court-martial, that he was confined by civil authorities, and that he was AWOL on nine separate occasions.  The applicant had completed only 2 years, 7 months, and 3 days of active creditable service of his three year term of service with a total of 236 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general discharge.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the applicant’s discharge was proper and equitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.




       _   xxx____   ___
       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)                                         AR20080001521



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ABCMR Record of Proceedings (cont)                                         AR20080001521



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