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ARMY | BCMR | CY2009 | 20090005899
Original file (20090005899.txt) Auto-classification: Denied

		IN THE CASE OF:	

		BOARD DATE:	 25 August 2009 

		DOCKET NUMBER:  AR20090005899 


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 to a general discharge.

2.  The applicant states that his poor behavior and performance is directly linked to his combat service and his bad combat experiences that still haunt him to this day.  He contends that under current standards he would not have received the type of discharge that he did.  He indicates that he suffered psychiatric problems (severe Post Traumatic Stress Disorder (PTSD)) related to his first and second tour of duty in Vietnam and this impaired his ability to serve.  He claims that his command abused its authority when it decided to discharge him and that he should have gotten a medical discharge because he was not qualified to serve due to his psychiatric problems.  He goes on to state that clemency is warranted and that it is an injustice for him to continue to suffer the adverse consequences of PTSD due to his combat experiences and his inability to seek professional help through the Department of Veterans Affairs (DVA) because of his discharge.  

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 30 October 1967 for a period of 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 05C (radio teletype operator).  He was later awarded MOS 57H (cargo handler).  He arrived in Vietnam on 5 July 1968.  

3.  On 9 December 1969, while in Vietnam, the applicant was convicted by a summary court-martial of violating a lawful general regulation and failing to go at the time prescribed to his appointed place of duty.  He was sentenced to forfeit $50 per month for 1 month.  On 9 December 1969, the convening authority approved the sentence.   

4.  On 1 January 1970, a bar to reenlistment was imposed against the applicant.

5.  On 4 January 1970, the applicant was transferred back to the United States. 

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 (Report of Transfer or Discharge) shows that he was discharged on 13 March 1970 with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 4 months, and 10 days of creditable active service with 4 days of lost time due to being AWOL.

7.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge on 13 March 1970.

8.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  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.  An undesirable discharge was normally considered appropriate.
10.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  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 evidence of record does not support the applicant's contention that under current standards he would not have received the type of discharge he did.  The current governing regulation states that an individual separated by reason of misconduct for minor disciplinary infractions or a pattern of misconduct would normally be furnished a discharge under other than honorable conditions.  

2.  Although the applicant contends that he suffered psychiatric problems/severe PTSD related to his first and second tour of duty in Vietnam and that it impaired his ability to serve, there is no evidence to show he was having psychiatric problems in 1970 that interfered with his ability to perform his military duties or that were the underlying cause for the misconduct that led to his discharge.  

3.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis 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)                                         AR20090005899



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ABCMR Record of Proceedings (cont)                                         AR20090005899



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