IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080005600 


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, in effect, an upgrade of his general discharge to an honorable discharge or a medical discharge. 

2.  The applicant states, in effect, that his medical records should show he was recommended for an honorable discharge because of post-traumatic stress disorder (PTSD).  He also states, in effect, his discharge should be changed to honorable because of permanent damage for psychological reasons.  He also states that he has been suffering from not getting the proper treatment at the time and has already filed a claim for PTSD.

3.  The applicant provides no additional documentation in support of his application.

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 1 June 1967, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 11B, light weapons infantryman.  He was promoted to pay grade E-2 on 1 October 1967 and to pay grade E-3 on 9 January 1968.

3.  The applicant was honorably discharged for immediate reenlistment on 7 August 1968 and was issued a DD Form 214.  He reenlisted on 8 August 1968, for 3 years.  He served in Vietnam from 29 February 1968 to 8 February 1969.  

4.  On 5 September 1968, the applicant was convicted by a summary court-martial of dereliction in performing his duties and failing to obey a lawful order on 28 August 1968.  He was sentenced to forfeiture of $50.00 per month for 1 month and 30 days restriction.  The sentence was approved on 5 September 1968.

5.  On 3 November 1968, the applicant was convicted by a summary court-martial of absence without leave (AWOL) from 14 October to 19 October 1968 and breaking restriction on 21 October 1968.  He was sentenced to reduction to pay grade E-1, forfeiture of $60.00 per month for 1 month, and hard labor without confinement for 30 days.  The sentence was approved on 3 November 1968.

6.  A Report of Psychiatric Evaluation, dated 2 December 1968, shows the applicant underwent a psychiatric evaluation, performed by a medical doctor (MD), on that date.   The MD stated that the applicant was referred by the command for a psychiatric evaluation in connection with administrative board proceedings under the provisions of Army Regulation 635-212.  The purpose of the evaluation and his rights were explained to the applicant.  During the evaluation, the applicant stated that he could not stand being told to do anything and wanted to be his own boss.  A Mental Status Evaluation found the applicant to be a fully oriented, alert, cooperative individual with normal motor behavior.  His speech was coherent, his mood was neutral, and his affect was appropriate.  There was no evidence of a thought disorder, his memory was in tact, his judgment was poor, and his insight was lacking.  There was no evidence of psychosis or neurosis.

7.  The applicant was diagnosed with a passive-aggressive personality, chronic, severe, manifested by intolerance of authority; indifference to duty; moderate stress, although he saw considerable action in the infantry, real difficulties began after transfer to noncombat jobs; severe predisposition, previous inability to tolerate authority, control anger; and moderate impairment.  The applicant was found to meet the retention standards prescribed in Army Regulation 40-501, Chapter 3, and there was no psychiatric disease or defect which warranted disposition through medical channels.  The medical doctor concluded that the diagnosis represented a character and behavior disorder within the meaning of Army Regulations 40-501 and 635-212.  He recommended the applicant be administratively separated from the military under the provisions of Army Regulation 635-212, because of unsuitability.

8.  On 12 January 1969, the applicant's unit commander advised him of the intent to discharge him from active duty for unsuitability.

9.  On the same day, the applicant, after consulting with counsel, acknowledged the contemplated action.  He waived his right to counsel and to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge under honorable conditions.  He also elected not to submit a statement in his own behalf.

10.   On 21 January 1969, the applicant was convicted by a special court-martial of AWOL from 16 November to 23 November 1968, from 12 December to 21 December 1968, and from 27 December 1968 to 7 January 1969.  He was sentenced to confinement at hard labor for 4 month and forfeiture of $50.00 per month for 4 months.  The sentence was approved on 29 January 1969.

11.  On 29 January 1969, the applicant's commander requested that further counseling and rehabilitation, as required under the provisions of Army Regulation 635-212, paragraphs 7a and 7b, be waived for the good of the service.  He stated that in view of the repeated offenses and the results and recommendation contained in the psychiatric examination, there appeared to be no grounds for other disposition of the case.

12.  On 7 February 1969, the appropriate separation authority granted a waiver of the requirement for a rehabilitation transfer and approved the immediate discharge of the applicant under the provisions of Army Regulation 635-212, for Unsuitability, and directed the issuance of a General Discharge Certificate.  

13.  The applicant was discharged on 10 February 1969, in pay grade E-1, under the provisions of Army Regulation 635-212, with a general discharge.  He was credited with 2 months and 28 days net service and 1 year, 2 months, and 7 days prior active service.  He was also credited with 65 days lost time due to AWOL and confinement.  

14.  There is no evidence the applicant applied for a discharge upgrade to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

15.  Army Regulation 635-212 (Enlisted Separations), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

16.  Army Regulation 635-200, paragraph 3-7a 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 clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. 

DISCUSSION AND CONCLUSIONS:

1.   The evidence of record shows that the applicant was convicted by summary courts-martial on 5 September and 3 November 1968 of dereliction of duty, failing to obey a lawful order, AWOL, and breaking restriction.  Action was initiated to separate him for unsuitability; however, before the process was completed, he was convicted by special court-martial of AWOL from 16 November to 23 November 1968, from 12 December to 21 December 1968, and from 27 December 1968 to 7 January 1969, which contributed to his discharge under the provisions of Army Regulation 635-212, for Unsuitability.  He was issued a general discharge.

2.  The applicant alleges that he was suffering from PTSD at the time of his discharge and should have received an honorable or disability discharge instead of being discharged under the provisions of Army Regulation 635-212, for Unsuitability.  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 1969 separation physical examination did not show he suffered from PTSD while serving on active duty.  He was found qualified for separation from the service.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust or that he deserves an honorable discharge now.  He also has not provided evidence sufficient to mitigate the character of his discharge.  In the absence of evidence to the contrary, the character of the discharge is commensurate with the applicant's overall record of military service from 8 August 1968 to 10 February 1969. 

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

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)                                         AR20080005600



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005600


4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1