IN THE CASE OF:	 

		BOARD DATE:	       12 MARCH 2009

		DOCKET NUMBER:  AR20080019140 


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 undesirable discharge be upgraded.  

2.  The applicant states, in effect, that he was suffering from severe Post Traumatic Stress Disorder (PTSD), that he reverted to alcohol and drugs to ease his fears, and that he would like to get help for his PTSD.  He contends that he still suffers today from severe PTSD and that he attends Alcoholics Anonymous (AA) to help with his alcohol problems but not the war.  He indicates that he is a sober member of AA and that he has been sober for 25 years.  He also points out that the first half of his tour in Vietnam was spent in combat sweeps and he saw many people killed and blown up and the second half of his tour included attacks on his compound and being overrun by the Viet Cong. 

3.  The applicant provides five letters from AA members and one letter from a counselor 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 enlisted in the Regular Army on 13 February 1967 for a period of 3 years.  He successfully completed basic and advanced individual training in military occupational specialty (MOS) 63C (general vehicle repairman).  He arrived in Vietnam on 13 August 1967.  He served in MOS 63C assigned to Headquarters and Headquarters Company, 2nd Battalion, 12th Infantry and Company D, 25th Medical Battalion during his assignment in Vietnam.  He departed Vietnam on 5 August 1968.

3.  On 25 January 1969, nonjudicial punishment was imposed against the applicant for operating a vehicle in a reckless manner.  His punishment consisted of a forfeiture of pay and extra duty. 

4.  On 30 January 1969, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 29 January 1969 to 
30 January 1969.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended), a forfeiture of pay, restriction, and extra duty. 

5.  On 7 February 1969, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty. 

6.  On 30 July 1969, in accordance with his pleas, the applicant was convicted by a summary court-martial of two specifications of being AWOL (from 9 May 1969 to 26 May 1969 and from 27 May 1969 to 20 June 1969).  He was sentenced to be confined at hard labor for 1 month, to be reduced to private (PV1)/E-1, and to forfeit $100.00 pay per month for 1 month.  On 30 July 1969, the convening authority approved only so much of the sentence as provided for hard labor without confinement for 15 days, reduction to PV1, restriction for 40 days, and forfeiture of $80.00 pay per month for 1 month. 

7.  On 20 June 1969, the applicant was convicted by civil authorities of larceny and he was placed on probation for 2 years.    

8.  On 29 July 1969, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL [absent without leave], Desertion)) for conviction by civil court.  On 5 August 1969, he waived 
consideration of his case by a board of officers, he waived representation by 

counsel, and he elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event a general discharge were issued, that he understood that as the result of the issuance of an undesirable discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  

9.  On 30 July 1969, the applicant underwent a psychiatric evaluation and the psychiatrist found that there was no evidence of any neurosis or psychosis and there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings. 

10.  On 4 August 1969, the applicant underwent a separation physical examination and was found qualified for separation.  The applicant reported that he was in “good” health on his Standard Form 89 (Report of Medical History).

11.  On 4 September 1969, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.  

12.  Accordingly, the applicant was discharged on 16 September 1969 with an undesirable discharge under the provisions of Army Regulation 635-206 for conviction by civil court.  He had served 2 years, 5 months, and 24 days of creditable active service with 41 days of lost time due to AWOL.   

13.  In support of his claim, the applicant provided five letters from AA members attesting to his sobriety.  He also provided a letter from his counselor.  In summary, the counselor states that he has worked with the applicant on issues related to alcohol abuse and psychological issues for over two years.

14.  On 5 July 1985, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.    

15.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate.  

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.  

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.  Although the applicant contends that he was suffering from severe PTSD, there is no evidence to show he was having psychiatric problems in 1969 that interfered with his ability to perform his military duties.  

2.  The letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

4.  The applicant’s record of service included three nonjudicial punishments, 
one summary court-martial conviction, and 41 days of lost time.  It appears he also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.




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.



      _________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)                                         AR20080019140



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ABCMR Record of Proceedings (cont)                                         AR20080019140



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