IN THE CASE OF:	  

		BOARD DATE:	       18 November 2008

		DOCKET NUMBER:  AR20080012126 


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 undesirable discharge he received on 10 May 1969 be upgraded to an honorable discharge or a discharge under honorable conditions.

2.  The applicant states that he was harassed by his sergeant and issued an undesirable discharge after returning from Vietnam.  He states that upon returning from Vietnam he had a profile that read "No Sweating."  He states the sergeant felt that he was a "goof off" and had him discharged.  He further states he is now suffering from post-traumatic stress disorder (PTSD) and a skin condition secondary to exposure to Agent Orange (a herbicide).

3.  The applicant provides no additional evidence 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 personnel record shows he initially enlisted in the Regular Army on 28 March 1967 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant was assigned in the Republic of Vietnam during the period from 14 December 1967 to 2 July 1968.

4.  On 12 July 1968, the applicant received a DA Form 8-274 (Medical Condition - Physical Profile Record) that shows the applicant received a permanent P3 profile for post traumatic arthritis right index finger metacarpal phalange.  The profile listed limitations as no upper extremity calisthenics, push-ups, pull-ups, or hand-to-hand combat training.  Further limitations were no firing of individually-handled weapons and no duty where strength of grip is required.

5.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on 30 July 1968, 2 August 1968, and 30 September 1968.  His offenses included being absent without proper authority from his unit, failure to obey a lawful general regulation, and failure to go at the time prescribed to his appointed place of duty.

6.  On 18 November 1968, the applicant pleaded guilty and was found guilty by a special court-martial of failure to go at the time prescribed to his appointed place of duty, absence from his unit, and breaking restriction.  His sentence consisted of forfeiture of $73 per month for one month and one month of restriction to the limits of the company area.  The applicant's sentence was approved on 21 November 1968.

7.  On 29 November 1968, the applicant was evaluated by a major of the Medical Corps, a psychiatrist, at the U.S. Army Hospital, Ryukyu Islands.  The examiner indicated the applicant was considered to be sane and responsible, capable of distinguishing right from wrong, capable of adhering to the right, and capable of cooperating in his own defense and participating in administrative proceedings.  The examiner granted psychiatric clearance for any administrative or disciplinary action deemed appropriate to the applicant's case by his command.

8.  On 17 December 1968, the applicant pleaded not guilty and was found guilty by a summary court-martial of breaking restriction on 27 November 1968.  His sentence consisted of 30 days of confinement and forfeiture of $73 per month for one month.  The applicant's sentence was approved on 17 December 1968.
9.  On 4 March 1969, the applicant's commander recommended that, under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), the applicant be required to appear before a board of officers to determine whether he should be discharged before the expiration of his term of service.  The commander recommended discharge because of the applicant's habits and traits of character manifested by repeated commission of offenses and habitual shirking.  There is no evidence of record of a hearing before a board of officers.

10.  On 3 May 1969, a Staff Judge Advocate (SJA) reviewed the applicant's case and determined that it was legally sufficient to support separation of the applicant under Army Regulation 635-212 with an undesirable discharge.  The SJA "…found no legal objection to the applicant's waiving his right to a board rehearing as he has done this with advice of lawyer counsel."

11.  On 6 May 1969, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.

12.  The applicant acknowledged that as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

13.  On 6 May 1969, the appropriate authority waived rehabilitative transfer, directed the discharge of the applicant under the provisions of paragraph 6a(1) of Army Regulation 635-212, and directed issuance of an Undesirable Discharge Certificate.

14.  On 10 May 1969, the applicant was discharged under the provisions paragraph 6a(1) of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 10 months, and 16 days of active service that was characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.

15.  On 7 April 1971, the applicant applied to the Army Discharge Review Board (ADRB) to upgrade his undesirable discharge to an honorable discharge.
16.  On 26 August 1971, the applicant again enlisted in the Regular Army for a period of 3 years.  There are no entries in item 49 (Prior Service) of the applicant's DD Form 4 (Enlistment Contract - Armed Forces of the United States) indicating that he had prior service.  He was assigned to Company A, 2d Battalion, 1st Brigade, at Fort Ord, California, on 6 September 1971 as a trainee.

17.  On 5 October 1971, the ADRB reviewed and denied the applicant's request for upgrade of the discharge he received on 10 May 1969.  The ADRB determined that the applicant was properly discharged and notified the applicant on 3 November 1971.

18.  On 13 December 1971, court-martial charges were preferred against the applicant for being absent without leave during the periods from 13 October 1971 to 14 October 1971 and from 18 October 1971 to 12 December 1971.

19.  On 2 February 1972, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and directed that he be furnished an Undesirable Discharge Certificate.

20.  On 7 February 1972, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service.  He had completed 3 months and 10 days of active service that was characterized as under conditions other than honorable.  He had 62 days of time lost.

21.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of the discharge he received on 7 February 1972 within the ADRB's 15-year statute of limitations.

22.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive an upgrade to his discharge because he was harassed by his sergeant upon his return from the Republic of Vietnam.  He contends he had a "No Sweating" profile when he returned from the Republic of Vietnam.  He further contends he now suffers from PTSD and a skin condition secondary to exposure to Agent Orange.

2.  The applicant has submitted no evidence to support his contention of harassment by his sergeant.  The DA Form 8-274 does show the applicant had a P3 profile based on his right index finger.  The profile basically limited any activity that would require the applicant to use his right hand which would affect his right index finger.  There are no entries on the DA Form 8-274 concerning sweating.

3.  The applicant's violations of the UCMJ consist of his inability to be where he is supposed to be and his failure to obey lawful orders.  These violations do not appear to have any connection with his physical profile for his right index finger.  Therefore, his permanent profile for his index finger is not considered a mitigating factor in the disposition of this case.

4.  A record of a board of officers was not contained in the applicant's official military personnel file.  However, based on the statement by the SJA that the applicant was waiving a rehearing, it is reasonable to conclude that a board of officers was convened and recommended the applicant be discharged.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  A review of the applicant's record of service, which included nonjudicial punishment, conviction by a summary court-martial, and conviction by a special court-martial, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  Any questions regarding treatment of medical conditions incurred during service should be addressed to the Department of Veterans Affairs.

8.  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 that requirement.

9.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge he received on 10 May 1969 to honorable or to general under honorable conditions.

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)                                         AR20080012126



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ABCMR Record of Proceedings (cont)                                         AR20080012126



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