IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20080019905 


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 his undesirable discharge be upgraded to general.

2.  The applicant states he had mental problems associated with his service in Vietnam that were not known to the military.

3.  The applicant provides a letter from his current physician.

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 31 March 1971, completed training, and was awarded the military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  The applicant served in Vietnam with Company E, 2nd Battalion, 327th Infantry Regiment, from 9 October 1971 through 14 April 1972.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 18 January 1972, for possession of marijuana;

	b.  on 10 August 1972, for absenting himself from his place of duty;

	c.  on 25 August 1972, for absenting himself from his place of duty;

	d.  on 18 October 1972, for failure to go to his place of duty on two occasions;

	e.  on 20 October 1972, for altering an identification card;

	f.  on 22 December 1972, for failure to go to his place of duty;  and

	g.  on 29 March 1973, for failure to obey an order.

5.  On 2 May 1973, the applicant was notified of a proposed separation action for unfitness and advised of his rights.

6.  The applicant acknowledged the proposed actions and waived his right to counsel and to appear before a board of officers.  He did submit a statement on his own behalf wherein he stated that he hated the Army, was wasting his time, and wanted out of the service.  He thought his service warranted a general discharge but would accept anything to get out.

7.  On 3 July 1973, the discharge authority waived rehabilitation measures, approved the discharge, and directed the applicant receive an Undesirable Discharge Certificate.

8.  The applicant was discharged on 13 July 1973.  He had 2 years, 3 months, and 13 days of creditable service.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for unfitness.  His service was characterized as under other than honorable conditions.

10.  The record contains no indication of award of any personal award or decoration or letters of commendation for commendable, meritorious, or valorous service.  There is no indication that the applicant complained of or was considered to be suffering from any mental disability.

11.  On 11 February 1975, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change the narrative reason for his discharge.

12.  A statement signed by R____ R____, M.D., states the applicant has been under his psychiatric care for over 12 years for severe recurrent anxiety.  The doctor recommended that the applicant be recognized as needing treatment for post-traumatic stress disorder (PTSD).

12.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Paragraph 13-5(a) provided for 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.

13.  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.  The applicant states he had mental problems associated with Vietnam that were not known to the military.

2.  The applicant has provided no documentation to show that he was suffering from an undiagnosed mental condition at the time of his infractions.

3.  Failing evidence that the applicant was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right, there is no evidence to demonstrate an injustice in the discharge.

4.  The 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.

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)                                         AR20080019905



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ABCMR Record of Proceedings (cont)                                         AR20080019905



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