IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080005897 


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 an upgrade of his discharge.

2.  The applicant states that after completion of basic combat and advanced individual training, he reported to Fort Benning, Georgia, to attend Airborne training and Fort Bragg, North Carolina, to attend Special Forces training.  He subsequently served two back-to-back tours in the Republic of Vietnam achieving the rank/grade of staff sergeant (SSG)/E-6 and earning three awards of the Purple Heart.  He was treated for wounds in the Republic of Vietnam and in Hawaii and was reassigned to Fort Bragg, North Carolina, and Fort Blevoir, Virginia, where he suffered from Post Traumatic Stress Disorder (PTSD) to the point that he could not function at any level of satisfaction.  However, instead of getting help, he was given an Undesirable Discharge Certificate.  He further adds that since his discharge, he continued to suffer from PTSD and has had five heart attacks, eight back surgeries, Type II Diabetes, Bilateral Leg Amputations, skin lesions, lung lesions from Agent Orange and other chemicals he was exposed to, and has also suffered two strokes that caused lapses and loss of memory.  He concludes that all he requests is an upgrade to a status that can get him Department of Veterans Affairs (VA) benefits and pay for his medical bills.  

3.  The applicant provided a self-authored statement, dated 8 February 2008, 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 records show that he enlisted in the Regular Army for a period of 3 years on 1 July 1964.  He completed basic combat training at Fort Gordon, Georgia, and advanced individual training, at Fort Rucker, Alabama, and was awarded military occupational specialty (MOS) 67M (Single Engine Rotary Observation Helicopter Mechanic).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  There is no indication in his records that he was appointed, advanced, or promoted beyond PFC/E-3.

3.  The applicant's records show he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.  Furthermore, there is no indication in the applicant’s records that he was awarded any awards of the Purple Heart.

4.  The applicant's records also show that he served at Fort Rucker, Alabama, and Fort Belvoir, Virginia.  There is no indication in his records that he served in the Republic of Vietnam.  Furthermore, his records do not show he attended or completed Airborne or Special Forces training, or that he was assigned to either Fort Benning or Fort Bragg.  

5.  The applicant's records reveal an extensive disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

     a.  on 11 December 1964, at Fort Rucker, Alabama, for making a false statement with intent to deceive, that someone stole a radio and a necklace from his wall-locker, on or about 7 December 1964.  His punishment consisted of 15 days of extra duty; 

     b.  on 26 November 1965, at Fort Belvoir, Virginia, for being disorderly in conduct by engaging in a fight with another Soldier and possessing a knife with a blade in excess of 2.5 inches, on or about 10 November 1965.  His punishment consisted of 10 days of extra duty;  

     c.  on 17 January 1966, at Fort Belvoir, Virginia, for falling asleep on duty at the Operations Dispatch Section, on or about 10 January 1966.  His punishment consisted of reduction to PV2/E-2 (suspended for 4 months) and forfeiture of $25.00 pay for 2 months.  He appealed his punishment on 17 January 1966; however, his appeal was denied on 8 February 1966; and

     d.  on 26 May 1966, at Fort Belvoir, Virginia, for failing to report for training as directed by competent authority, on or about 21 May 1966.  His punishment consisted of reduction to PVT/E-1 (suspended for 4 months) and 25 days of extra duty.

6.  On 9 January 1967, at Fort Belvoir, Virginia, the applicant pled not guilty at a Special Court-Martial to one specification of stealing a .45 caliber pistol, Serial Number 1288206, of a value of about $57.00, the property of the U.S. Government, from on or about 26 October 1966 to about 17 November 1966; and one specification of stealing a .45 caliber pistol, Serial Number 2400465, of a value of about $57.00, the property of the U.S. Government, from on or about 26 October 1966 to about 17 November 1966.  The Court-Martial found him guilty of wrongful appropriation to the first specification and guilty as charged of the second specification.  The Court-Martial sentenced him to 6 months of confinement at hard labor and an automatic reduction to the lowest enlisted grade.  The sentence was adjudged on 9 January 1967 and approved on
20 January 1967.

7.  On 12 January 1967 (erroneously shown as 16 January 1967), the applicant's immediate commander recommended the applicant appear before a Board of Officers for the purpose of determining whether he should be discharged under the provisions of Army Regulation 635-212 (Personnel Separations) for unfitness. The immediate commander cited the applicant’s habits and traits of character as manifested by his frequent acts of discreditable nature with military authorities resulting in judicial and nonjudicial punishment.

8.  On 12 January 1967, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a Board of Officers, waived appearance before a Board of Officers, and elected not to submit any statements on his own behalf. 

9.  On 1 February 1967, Headquarters, Military District of Washington, Washington, D.C., published Special Court-Martial Order Number 1, setting aside so much of the findings of guilty to the Charge and its specifications with respect to value as finds value in excess of $50.00.  All rights, privileges, and property of which the applicant was deprived by virtue of that portion of the findings of guilty were restored. 

10.  On 8 February 1967, the applicant's senior commander recommended approval of the applicant's separation with a General Discharge Certificate.  The senior commander remarked that if separation was approved, he would remit the unexecuted portion of the punishment so the applicant could be discharged.

11.  On 21 February 1967, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged on 1 May 1967 with a characterization of service of under conditions other than honorable.  This form further confirms that he completed a total of 2 years and 7 months of creditable active military service and had 102 days of lost time due to confinement.

12.  On 27 April 1967, Headquarters, Davison Army Airfield, Fort Belvoir, Virginia, Special Orders Number 2, remitted the unexecuted portion of the applicant’s sentence to confinement at hard labor for six months, effective 1 May 1967.  

13.  In a self-authored letter, dated 8 February 2008, the applicant states that as a result of his undesirable discharge, he was treated badly and was only considered for low paying jobs.  This restricted him to living in slum areas and led to financial, marital, and medical problems.  He concludes that he served his country proudly despite suffering racism at the hands of his superiors, and only asks for an upgrade so he can get VA benefits.  

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

15.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  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 his discharge should be upgraded.

2.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that shows he served in the Republic of Vietnam, was awarded three awards of the Purple Heart, or suffered all his medical ailments during his military service.

3.  The applicant's records do not reflect any instances or indication of racism or mistreatment.  Furthermore, there is no indication in the applicant's records that shows he addressed the alleged issue of racism with his chain of command or with any supporting channels.

4.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were 
conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

5.  The applicant had an extensive history of disciplinary problems including four instances of Article 15 and one instance of a Special Court-Martial.  Based on the available record, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge

6.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

7.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative who can best advise him on VA benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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)                                         AR20080005897



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ABCMR Record of Proceedings (cont)                                         AR20080005897



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