IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080007277 


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 the Board affirm the upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).

2.  The applicant states that he was originally discharged with an undesirable discharge, with service characterized as under other than honorable conditions and that it was upgraded to a general discharge under the SDRP.  However, because the upgrade was not reviewed by a Board, the Department of Veterans Affairs (VA) does not recognize the upgrade, which renders him disqualified for VA benefits.  The applicant adds that there was an injustice related to the character of his discharge; he was psychiatrically impaired. 

3.  The applicant provided a copy of the VA letter, dated 27 February 2008, showing he was diagnoses with and actively being treated for Post Traumatic Distress Disorder (PTSD), a psychiatric disorder.

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 30 December 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant's records further show he served in the Republic of Vietnam from 1 August 1967 to 1 August 1968.  His awards and decorations include the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, two Overseas Service Bars, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 9 July 1968, the applicant pled guilty at a Special Court-Martial for one specification of wrongfully communicating a threat to kill a superior commissioned officer, on or about 29 May 1968.   The Court-Martial sentenced the applicant to forfeiture of $79.00 pay for three months and reduction to PVT/
E-1.  The sentence was adjudged on 9 July 1968 and was approved on 11 July 1968. 

5.  On 14 February 1969, the applicant underwent a psychiatric evaluation at Fort Leonard Wood, Missouri.  The military medical officer remarked that the applicant had no psychiatric disorder and that he wanted out of the Army on his own terms. The medical officer further recommended separation under appropriate administrative regulation.  

6.  On 20 February 1969, the applicant's immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-212 (Personnel Separations) for unfitness.   

7.  On 20 February 1969, 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 and did not submit any statements on his own behalf. 
8.  On 26 February 1969, the applicant's intermediate commander recommended approval of the applicant's separation with an Undesirable Discharge Certificate.  The immediate commander remarked that the applicant had no further value to the Army.  He was unkempt in appearance, negative in his attitude, and resentful of authority.  His discharge was in the best interests of the Army.  

9.  On 26 March 1969, 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 and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 2 years, 2 months, and 24 days of creditable active military service and 7 days of lost time

10.  On 8 November 1977, the Army Discharge Review Board directed the applicant’s discharge under conditions other than honorable be upgraded to an under honorable conditions (general) discharge.  

11.  On 10 August 1978, the Army Discharge Review Board re-reviewed the applicant’s discharge as required by Public Law 95-126.  As a result of this review, the Board determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  This did not change the upgraded discharge he previously received; but, because of the new law, he would not be able to use his discharge to qualify for VA benefits. 

12.  The applicant submitted a copy of the VA letter, dated 27 February 2008, showing the applicant was diagnosed with chronic PTSD.  This disorder develops as a result of exposure to a terrifying or life-threatening experience and the applicant had been afflicted for many years with PTSD related to his military experience in Vietnam.  

13.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It stated, 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.

14.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and
28 March 1973.  This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

15.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

16.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service correction boards in order to entitle the service member to VA benefits.  

DISCUSSION AND CONCLUSIONS:

1.  After review of the applicant’s discharge upgrade, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  

2.  The evidence of record clearly shows that the applicant had a disciplinary record, to include two instances of absence without leave and one instance of a special court-martial.  He clearly exhibited a total disregard for military authorities.  Notwithstanding the original determination by the ADRB, the official record shows that his service was not satisfactory and that his general discharge should not be affirmed.  


3.  The applicant’s contentions regarding his treatment for PTSD have been noted.  However, a review of the available record fails to show that he was suffering from PTSD while he was in the Army.  Furthermore, his service in Vietnam was also considered and noted.  However, these factors do not provide a sufficient basis for granting relief when considering his overall record of undistinguished service.  

4.  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.

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)                                         AR20080007277



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ABCMR Record of Proceedings (cont)                                         AR20080007277



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