IN THE CASE OF:	  

		BOARD DATE:	       4 November 2008

		DOCKET NUMBER:  AR20080011318 


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.

2.  The applicant states, in effect, he has developed post traumatic stress disorder (PTSD) as a result of two vehicular accidents.  He indicates he had problems coping with the deaths that he caused and he believes those accidents led to his undesirable discharge (UD).

3.  The applicant provides two statements describing two accidents that he was involved in while on active duty:

	a.  The applicant describes an incident wherein he was driving a 10-ton tractor trailer outside of Bangkok, Thailand.  His assistant driver had stopped traffic to allow him to pull out into an intersection to make a turn.  A "Bot Bus" came around from behind the traffic that had stopped; by the time he saw it, it was too late to stop.  He hit the bus, injuring a number of people and reportedly killing 13 of them.  It took intervention by his Congressman to get him out of Thailand following this incident.

	b.  A second accident occurred in Vietnam while he was working on Highway One under hot and dusty conditions.  He was driving a fully loaded "scraper truck" in a road widening operation.  He had to keep checking the side of the road to ensure he was as far over as possible.  He had just checked his position 


when he looked ahead and saw a bus coming at him.  He locked the brakes but he was unable to stop in time.  The blade on the front of the truck cut through 15 feet of the bus at a level just above the hood.  He was told that 9 people were killed and 15 seriously injured.

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 entered active duty on 14 November 1967, completed training, and was awarded a primary military occupation specialty (MOS) of 62E (Construction Machinery Operator) and a secondary MOS of 62K (Grader Operator).  

3.  The applicant served in Thailand from 13 April 1968 through 23 December 1969.  He reenlisted on 4 August 1970 and served in Vietnam from 6 January 1971 through 9 December 1971.

4.  A 6 August 1973 summary court-martial found the applicant guilty of being AWOL and sentenced him to reduction to pay grade E-4.

5.  The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) in August 1973, following a civilian arrest for driving while intoxicated.  He initially did well in the program as it related to drug abuse; however, he repeatedly missed appointments for the alcohol counseling and continued to drink.  He was officially dropped from the program on 4 September 1974.

6.  The applicant's file contains letters of indebtedness, indicating the applicant was in the arrears on payments to eight creditors.  



7.  During the applicant's second period of service he received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on five occasions; for being AWOL (three occurrences), for failure to go to his appointed place of duty, and for speeding.  The punishments resulted in him being incrementally reduced from pay grade E-4 to E-2.

8.  Between June 1973 and July 1974, the applicant was counseled on 36 occasions for failure to pay just debts, failure to keep ADAPCP appointments, failure to go to his appointed place of duty, the negative impact of Articles 15, being AWOL, his off duty behavior, and erratic duty performance.

9.  The applicant was AWOL from 2 August through 28 August 1974 when he was apprehended by civilian police.

10.  On 1 November 1974, the applicant's command initiated separation actions under Army Regulation 635-200, paragraph 13-5(a)(1), for unfitness and 
13-5(a)(5), for frequent incidents of a discreditable nature with civil or military authorities and failure to pay just debts.  The applicant acknowledged the separation action, declined counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of a UD.

11.  On 11 November 1974, the discharge authority approved the discharge and directed that the applicant be reduced to the lowest enlisted grade and separated with a UD for unfitness.

12.  The applicant was discharged on 26 November 1974.  He had completed 
4 years, 1 month, and 15 days of creditable service with 79 days of lost time during his second enlistment.

13.  On 14 October 1982, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.

14.  The record does not contain any official documentation to support the applicant’s contention that he was or is suffering from PTSD.  There is also no documentation available related to either of the accidents the applicant described as the bases for his problems.



15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Paragraph 13-5(a) provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The available evidence does not support that the applicant was suffering from PTSD, mental or emotional problems that affected his ability to serve. 

3.  Further, the applicant was separated due to misconduct and there is no evidence available that indicates he was suffering from an emotional problem that was so severe that he could not tell right from wrong and adhere to the right.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080011318



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ABCMR Record of Proceedings (cont)                                         AR20080011318



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