DOCKET NUMBER:  AR20090003757 


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.  In two separate applications, dated 29 January and 20 March 2009, the applicant requests, in effect, an upgrade of his undesirable discharge (UD).   

2.  The applicant states, in effect, that it has been over 35 years since his discharge.  He further states he was only 17 years old, was sick (suffering from combat fatigue, malaria, and hepatitis) and did not have a board hearing.  He claims he was told to sign an early out because he suffered from combat fatigue. 

3.  The applicant provides three exhibits (A,B,C) which include several record documents he identifies in his applications and a psychologist statement in support of his request.  

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 record was not provided for Board review.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and records and separation packet documents submitted by the applicant.  

3.  The applicant’s DD Form 214 shows he enlisted in the Regular Army and entered active duty on 13 May 1970, at 17 years and 6 months of age.  It further shows after successfully completing basic combat training and advanced individual training (AIT) he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

4.  The applicant’s DD Form 214 as amended shows he served in the Republic of Vietnam (RVN) from 7 May 1971 through 7 January 1972, and that he earned the following awards during his active duty tenure: National Defense Service Medal (NDSM), Air Medal (AM), Vietnam Service Medal (VSM) with 3 bronze service stars, RVN Campaign Medal, Combat Infantryman Badge (CIB), Marksman Marksmanship Qualification Badge with Rifle Bar, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

5.  The DD Form 214 confirms that on 22 February 1972, the applicant was discharged under the provisions of Army Regulation 635-212, by reason of unfitness, and received an UD.  It further shows he held the rank of private/E-1 (PV1) and had completed a total of 1 year and 27 days of creditable active military service at the time of his discharge.  It also shows he accrued 13 days of time lost.

6.  There are no documents on file or provided by the applicant that indicate he was suffering from a disabling mental or physical condition at the time of his discharge. 

7.  The documents provided by the applicant include a court-martial order that shows on 23 November 1971, a Special Court-Martial (SPCM) found him guilty of violating Article 117 of the Uniform Code of Military Justice (UCMJ) by using reproachful words towards his first sergeant.  The resulting sentence was forfeiture of $150.00 per month for two months and a reduction to PFC.  

8.  The applicant also provided a disposition form, dated 3 December 1971, in which the unit commander recommended he be admitted to the drug treatment center in Cam Ranh Bay, RVN, for further treatment.  The unit commander indicated the applicant has tested positive for the use of illegal drugs on
22 October 1971 and again on 26 November 1971.  


9.  The documents provided by the applicant also include a partial separation packet that contains the commander’s recommendation that the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged before the expiration of his term of service, and that he receive an UD, dated 24 January 1972.  In this recommendation, the unit commander cited the applicant’s committing incidents of a discreditable nature, which included repeated commission of court-martial offenses, and his established pattern of shirking.  The separation authority’s endorsement approved the applicant’s discharge for unfitness and directed he receive an UD and be reduced to the lowest enlisted grade.  

10.  The applicant also provides a letter from a clinical psychologist, dated        15 June 2009, which indicates the applicant is actively participating in psychotherapy for post traumatic stress disorder (PTSD).  The psychologist recommends the applicant’s discharge be upgraded because it would be of great value for him to have access to medical and psychiatric care afforded by the Department of Veterans Affairs (VA).    

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's record of service; however, an UD was normally considered appropriate for members separating for unfitness.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an HD 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.  

14.  Paragraph 3- 7b of the enlisted separations regulation provides that a GD 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’s contention that his discharge should be upgraded because
35 years have passed and he was only 17 years old when he enlisted and was sick at the time of his discharge was carefully considered.  However, the Army does not now have and has never had a policy providing for an upgrade of a discharge based on the passage of time.  Discharges may be upgraded as a result of a recommendation by either the ADRB or this Board if the discharge is determined to be improper or inequitable, or if it is determined there is some error or injustice related to the discharge action. Further, although he was only 17 at the time of his enlistment, the applicant’s successful completion of training and subsequent successful service, as evidenced by his earned awards, clearly show he had the maturity and ability to successfully serve if he had chosen to do so.  Finally, there is no evidence of record or independent evidence provided by the applicant that shows he was suffering from a disabling mental or physical condition at the time of his discharge processing.  Therefore, the factors presented by the applicant are not sufficiently mitigating to support granting the requested relief.  

2.  The available evidence does not include an official separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing, and the separation documents provided by the applicant are not a complete separation packet.  However, the record does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed.  

3.  The applicant’s DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness.  In connection with such a discharge, he would have had the opportunity to request or waive his rights to have his case considered by and that he personally appear before a board of officers, and to be represented by counsel.  In the absence of evidence or information to the contrary, it is presumed that his separation processing was accomplished in accordance with the applicable regulation and that his rights were fully protected throughout the separation process.  

4.  The evidence available confirms the applicant had an extensive disciplinary history that included illegal drug use, shirking his duties, and his conviction by a SPCM while serving in the RVN.  It is clear his service record did not support the issue of an HD or GD by the separation authority at the time, nor does it support an upgrade at this late date.  


5.  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)                                         AR20090003757



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ABCMR Record of Proceedings (cont)                                         AR20090003757


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