IN THE CASE OF:	  

		BOARD DATE:	       16 April 2009

		DOCKET NUMBER:  AR20090000170 


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, an upgrade of the character of service of his discharge from under conditions other than honorable to honorable.

2.  The applicant states, in effect, he entered the Army on 11 November 1968; however, his initial discharge document incorrectly shows he entered the Army on 29 November 1968.  He adds that he was honorably discharged at Di An, Vietnam on 2 August 1969 and he reenlisted on 3 August 1969.

     a.  The applicant states that after returning from Vietnam he was having major difficulties with mental health issues related to his combat experience.  He also states that he had trouble readjusting to stateside duty, could not get any help through the Army, and felt abandoned, so he went absent without leave (AWOL).

     b.  The applicant states that he knew that going AWOL was wrong, but he could not get any help from the Army.  He states that if Vietnam veterans had received the type of consideration that today’s veterans receive many Vietnam veterans would not have felt lost after returning from Vietnam.

     c.  The applicant states that although the letter he provides from the Department of Veterans Affairs (VA), Eastern Kansas Health Care System, is dated 11 December 2005, he continues to seek care from the facility.  The applicant concludes by stating he needs the character of his service upgraded in order to obtain health care and monetary benefits from the VA.

3.  The applicant provides a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), undated; two
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 2 August 1969 and 4 February 1971; and a , letter, dated 211 (sic) December 2005, VA, Eastern Kansas Health Care System, Topeka, Kansas.

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 records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows the applicant enlisted in the U.S. Army and entered active duty in the Regular Army (RA) for a period of 2 years on 29 November 1968.

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record) and a temporary DA Form 20:

     a.  Item 31 (Foreign Service) shows he was assigned overseas to the U.S. Army Pacific (USARPAC), Republic of Vietnam (RVN), on 11 May 1969.

     b.  Item 38 (Record of Assignments), in pertinent part, shows the applicant was assigned to Company C, 1st Battalion, 28th Infantry Regiment, 1st Infantry Division (USARPAC RVN) on 19 May 1969.  This item shows he was then assigned to Company A, 1st Battalion, 28th Infantry Regiment, 1st Infantry Division (USARPAC RVN) on 1 June 1969.

     c.  Item 44 (Time Lost Under Section 972, Title 10, United States Code [USC] and Subsequent to Normal Date ETS [Expiration Term of Service]) (Temporary Record) shows the applicant was AWOL for 15 days from 3 September through 
17 September 1969; AWOL for 15 days from 21 September through 5 October 
1969; AWOL for 51 days from 10 October through 29 November 1969; AWOL for 22 days from 1 December through 22 December 1969; and AWOL for 241 days from 15 February through 13 October 1970.

4.  The applicant’s military personnel records contain a DD Form 214 with an effective date of 2 August 1969.  Item 17 (Current Active Service Other than by Induction), block c (Date of Entry), shows the applicant entered active duty on
29 November 1968.  The DD Form 214 also shows the applicant was honorably discharged on 2 August 1969 at Di An, RVN, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for the convenience of the government.  At the time, the applicant had completed
8 months and 4 days of net active service this period and 2 months and 22 days of foreign service.

5.  The applicant’s military personnel records contain a DD Form 4 that shows the applicant reenlisted in the RA for a period of 3 years on 3 August 1969.

6.  On 5 November 1970, the Commander, Holding Company, Special Processing Detachment, Fort Riley, Kansas, recommended the applicant be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 6b, for unfitness based on repeated and lengthy periods of AWOL resulting in a total of 344 days of bad time.  The separation packet shows, in pertinent part, the applicant was apprehended by civil authorities on 14 October 1970 and returned to military control at Fort Leavenworth, Kansas.  The commander indicated that since the applicant’s assignment to the unit, no attempts at rehabilitation had been made.  He also states the applicant was interviewed by officers of the unit and, due to his negative attitude, it was determined the applicant should be eliminated.  The commander added the applicant’s continued course of discreditable conduct outweighed consideration of discharge for character and behavior disorders.  The commander recommended the applicant be discharged for unfitness and issued an Undesirable Discharge Certificate.

7.  The applicant’s administrative separation packet contains a Certificate, Mental Hygiene Consultation Service, Irwin Army Hospital, Fort Riley, Kansas, that shows the hospital psychiatrist examined the applicant on 18 November 1970.  This medical official noted that a review of the applicant’s pre-military and military history indicated faulty judgment, non-commitment to productive goals, an incapacity to respond to rehabilitative efforts, resentment towards authority, and a tendency to go AWOL when stress arises.  The hospital psychiatrist added that 
there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He added the applicant did not manifest a 
psychosis or neurosis, and his further management was the commander’s prerogative.  The hospital psychiatrist indicated he believed that the applicant would not adjust to military service and that further rehabilitative efforts would be nonproductive.  He also concluded that the applicant was 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.

8.  On 14 January 1971, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, waived representation by appointed counsel and/or civilian counsel at his own expense, and elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  He further acknowledged that he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he would 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.  The applicant’s legal counsel also affixed his signature to the document.

9.  On 14 January 1971, the Commander, Special Processing Detachment, Fort Riley, Kansas, concurred with the recommendation that the requirements pertaining to counseling and rehabilitation be waived.  The commander added that the applicant received a final type physical examination on 15 October 1970 and he entered into pre-trial confinement on 20 October 1970 pending trial by Special Court-Martial, but charges would be dropped upon approval of discharge.  The commander recommended the applicant be discharged and issued an Undesirable Discharge Certificate.

10.  On 25 January 1971, the major general serving as Commander, 1st Infantry Division (Mechanized), Fort Riley, Kansas (the General Court-Martial Convening Authority and the authorized separation authority in the applicant’s case), reviewed the request for elimination from the service of the applicant under the provisions of Army Regulation 635-212.  The separation authority approved the waiver of the rehabilitation requirements, approved the applicant’s discharge for unfitness under the provisions of Army Regulation 635-212, and directed the applicant be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 4 February 1971.

11.  The applicant’s DD Form 214 shows he was discharged from the U.S. Army under the provisions of Army Regulation 635-212, with Separation Program Number (SPN) 28B, under conditions other than honorable.  Item 30 (Remarks) of the DD Form 214 shows, in pertinent part, the applicant had 344 days lost under Title 10, USC, section 972, from 3 September through 17 September 1969; 21 September through 5 October; 10 October through 29 November 1969; 1 December through 22 December 1969; and 15 February through 13 October 1970.  The DD Form 214 also shows that the applicant was discharged on
4 February 1971; credited with completing 6 months and 18 days of net active service during the period under review; 8 months and 5 days of other service;
1 year, 2 months, and 23 days of total service; and issued a DD Form 258A (Undesirable Discharge Certificate).

12.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  In support of his application, the applicant provides, in pertinent part, a copy of VA, Eastern Kansas Health Care System, Topeka and Leavenworth, Kansas, letter, dated 211 (sic) December 2005.  This document shows that the applicant was admitted to the Topeka VA Medical Center on 11 October 2005 for treatment of Post Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD) with Psychotic Features, and Alcohol Dependence in full sustained remission.  The staff psychiatrist indicated that the applicant had been living homeless in Kansas City, Kansas, for one year prior to admission and he is unemployable due to the severity of his PTSD and MDD symptoms with psychotic severity.  He adds that the applicant cannot read or write, is not able to tolerate being around people, periodically reports hearing voices, and has difficulty staying in a room with closed doors.  The staff psychiatrist concludes by stating the VA mental health treatment team fully supports favorable consideration of the applicant’s application for non-service connected disability.

15.  Army Regulation 635-212, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that Soldiers discharged for unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be awarded by the separation authority.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.   Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph
31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge."  

17.  Army Regulation 635-5-1 (Separation Program Numbers), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  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 contends, in effect, his records should be corrected to show he was honorably discharged because after returning from the RVN he was having major difficulties with mental health issues related to his combat experience, 
trouble readjusting to stateside duty, could not get any help through the Army, and felt abandoned.  He also contends that he initially entered the U.S. Army on 11 November 1968 and his DD Form 214 with an effective date of 2 August 1969 should be corrected to show this entry date.

2.  The evidence of record shows the applicant enlisted in the U.S. Army and entered active duty in the RA for a period of 2 years on 29 November 1968. There is no evidence of record, and the applicant provides insufficient evidence, to show he entered the U.S. Army on 11 November 1968.  Therefore, the applicant is not entitled to correction of the entry date shown in Item 17, block c, of his DD Form 214 with an effective date of 2 August 1969.

3.  The evidence of record shows the applicant was discharged on 2 August 1969 for the purpose of his immediate reenlistment in the RA.  The evidence of record also shows that the applicant’s DD Form 214 with an effective date of
2 August 1969 documents the applicant’s period of honorable active duty service from 29 November 1968 through 2 August 1969.

4.  The evidence of record shows that the applicant reenlisted in the RA on
3 August 1969.  The evidence of record also shows that the applicant began going AWOL from his unit in the RVN shortly after he reenlisted and before he returned to the United States.

5.  The evidence of record shows the applicant received a final type physical examination on 15 October 1970 and that he was examined by a psychiatrist on the staff of the Mental Hygiene Consultation Service, Irwin Army Hospital, Fort Riley, Kansas, on 18 November 1970, to ensure he was mentally fit for discharge.  The evidence of record also shows the applicant was interviewed by officers of his unit (i.e., the Special Processing Detachment, Fort Riley, Kansas). Thus, the evidence of record shows that Army officials were available to the applicant for help with difficulties he may have been experiencing.

6.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

7.  The evidence of record shows that, prior to his separation, the applicant was advised that his separation under other than honorable conditions may deprive him of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of 
an under other than honorable discharge.  In addition, the applicant indicated that he understood these facts.  Moreover, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his eligibility for government benefits.

8.  The evidence of record shows the applicant was discharged on 4 February 1971 based upon frequent incidents of a discreditable nature with military authorities, which included five periods of AWOL.  Thus, the evidence of record confirms the reason and authority for the applicant’s discharge were appropriate for the offenses committed.  The evidence of record also shows the applicant reenlisted for a period of 3 years; completed 6 months and 18 days of net active service during the period of service under review, and had 344 days (i.e., more than 11 months) of time lost during this period.  In view of the foregoing, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, the applicant is not entitled to an honorable discharge.  In addition, the evidence of record shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

9.  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.  Therefore, there is no justification for granting the applicant's request.

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)                                         AR20090000170



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ABCMR Record of Proceedings (cont)                                         AR20090000170



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