IN THE CASE OF:	  

		BOARD DATE:	  29 July 2008

		DOCKET NUMBER:  AR20080006982 


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, that his general discharge be upgraded to fully honorable.

2.  The applicant states that he was suffering from Post-Traumatic Stress Disorder (PTSD) and a lot of other problems while he was on active duty.  He wants the Board to consider his two tours in Vietnam.  He concludes that he has changed his life and doesn’t want to die without his records to “be what they should be.”

3.  The applicant does not provide any additional documents 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 military records show that he was inducted and entered active duty on 19 January 1968.  He was awarded the military occupational specialty of light weapons infantryman and served in Vietnam from March 1969 to January 1970.  He was promoted to pay grade E-4.

3.  The applicant immediately reenlisted and served in Germany and Korea.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, on four occasions from 27 October 1972 to 
9 October 1975 for offenses that included failure to make formation, drinking on duty, being absent without leave (AWOL), sleeping when performing duties as charge of quarters, and for failure to inspect the arms room.

5.  The applicant was convicted by a special court-martial for being AWOL from 16 July to 18 November 1973, and by a second special court-martial for disobeying a lawful order and pointing a knife with intent to harm.

5.  On 10 May 1976, the applicant’s commander notified him of his intent to recommend his discharge for unsuitability and of his options in conjunction with that recommendation.

5.  On 2 June 1976, the applicant was given a mental status evaluation and no problems were noted. 

6.  The applicant’s commander then forwarded his recommendation to discharge the applicant and that recommendation was approved by the appropriate authority.  Accordingly, the applicant was issued a General Discharge Certificate on 19 July 1976.  His DD Form 214 shows his significant awards as the Bronze Star Medal (for meritorious service), the Air Medal, and medals denoting his service in Vietnam.

7.  On 25 October 1978, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.

8.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5 b (3) provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and 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.

9.  Army Regulation 635-200, Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  When separation is directed under this chapter, an under other than honorable discharge is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did, in fact, serve slightly less than a full 1-year tour in Vietnam, and was awarded the Bronze Star Medal for meritorious service and the Air Medal.

2.  However, the applicant’s repeated acts of misconduct certainly warranted his separation.  Combat service does not exempt a soldier from the rules and regulations applicable to all soldiers in the Army.

3.  The fact that the applicant’s command opted to process him for discharge for unsuitability and characterized his service as under honorable conditions (general discharge) is indicative that his combat service was in fact taken into consideration.  With the applicant’s record of repeated, serious misconduct, he could have been processed for separation for misconduct and his service could have been characterized as under other than honorable conditions.

4.  While the applicant contends he was suffering from PTSD while he was on active duty, the mental status evaluation he was given in conjunction with his discharge processing did not show that the applicant had any psychiatric problems.  As such, this matter of mitigation is not accepted.

5.  In view of the forgoing, there is no basis for granting the applicant’s request.

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)                                         AR20080006982



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ABCMR Record of Proceedings (cont)                                         AR20080006982



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