BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090010079 


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 an honorable discharge.

2.  The applicant states that he knew nothing about post-traumatic stress disorder (PTSD) at the time he was discharged.  He feels that he had PTSD when he returned from the Republic of Vietnam.  He contends that he did not have negative behavior and was a model Soldier prior to his assignment in Vietnam.  When he returned to the States, all of his negative things happened.  He adds that he received two Purple Hearts and a Bronze Star Medal with "V" Device while serving in Vietnam.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and orders for award of the Purple Heart and the Bronze Star Medal with "V" Device 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.  After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 20 June 1963.  He was discharged on 28 September 1965 for immediate reenlistment.

3.  The applicant reenlisted on 29 September 1965 for a period of 6 years.

4.  On 5 October 1965 and 6 September 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:  operating a vehicle while drunk; being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor; and being absent without leave (AWOL) from 1 September 1966 to 2 September 1966.

5.  He was assigned to Company A, 2nd Battalion, 16th Infantry, 1st Infantry Division, in Vietnam on 27 October 1966.  He was promoted to sergeant/E-5 on 13 November 1966.

6.  On 22 July 1967, the applicant accepted NJP under Article 15, UCMJ, for missing the movement of his unit through neglect.

7.  On 10 October 1967, the 93rd Evacuation Hospital published orders which awarded the applicant the Purple Heart for action on 8 October 1967 in the Republic of Vietnam.

8.  The applicant departed Vietnam on 26 October 1967.

9.  On 2 December 1967, Headquarters, 1st Infantry Division, published orders which show the applicant was awarded the Bronze Star Medal with "V" Device for action on 29 September 1967 in the Republic of Vietnam.

10.  On 23 February 1968, the applicant accepted NJP under Article 15, UCMJ, for being AWOL on two separate occasions from 2 February 1968 to 3 February 1968 and 4 February 1968 to 5 February 1968.

11.  On 29 March 1968, the applicant was convicted pursuant to his plea by a summary court-martial of being AWOL from 16 March 1968 to 26 March 1968.   He was sentenced to restriction to the limits of the company area for 60 days, reduction to private first class/E-3, and forfeiture of $100.00 pay for 1 month.

12.  On 23 July 1968, the applicant was convicted pursuant to his plea by a special court-martial of being AWOL from 27 April 1968 to 15 June 1968.  He was sentenced to confinement at hard labor for 6 months (suspended for 6 months) and forfeiture of $70.00 pay per month for 6 months.

13.  On 25 April 1969, the applicant was convicted pursuant to his pleas by a special court-martial of two specifications of AWOL from 27 February 1969 to 11 March 1969 and 14 March 1969 to 18 March 1969.  He was charged with an additional charge of AWOL from 5 April 1969 to 9 April 1969.  He was sentenced to hard labor without confinement for 3 months and forfeiture of $50.00 pay per month for 3 months.

14.  On 16 June 1969, the company commander notified the applicant of the pending separation action under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness - frequent incidents of a discreditable nature with military authorities.  He was advised of his rights.

15.  The applicant acknowledged notification of his pending separation action.  He consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.

16.  On 15 September 1969, the separation authority waived further counseling and rehabilitation requirements and directed separation under the provisions of Army Regulation 635-212 for unfitness with issuance of an Undesirable Discharge Certificate.

17.  On 24 September 1969, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness - frequent incidents of a discreditable nature with civil or military authorities.  He completed 3 years, 5 months, and 17 days of active military service during the period under review and 9 years, 7 months, and 24 days of total active military service.  He had 189 days of lost time due to being AWOL and confinement.

18.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its15-year statute of limitations.

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of 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.

20.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

21.  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 that he feels he may have had PTSD when he returned from the Republic of Vietnam.  However, there is no evidence of record available which verifies the applicant was diagnosed with PTSD during his tenure on active duty.

2.  The applicant contends that he did not have negative behavior and was a model Soldier prior to his assignment in Vietnam.  However, the evidence of record shows he received NJP twice under Article 15, UCMJ, for operating a vehicle while drunk, being incapacitated for the proper performance of his duties, and being AWOL for 1 day prior to his assignment to Vietnam.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The applicant's record of service shows he was convicted by one summary court-martial and two special courts-martial for being AWOL on five separate occasions and he received NJP four times under Article 15, UCMJ.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable discharge or a general discharge.

5.  While the applicant's awards of the Purple Heart and the Bronze Star Medal with "V" Device for service in the Republic of Vietnam are commendable, his overall record of military service does not warrant an upgrade of his discharge to honorable.

6.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

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)                                         AR20090010079



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ABCMR Record of Proceedings (cont)                                         AR20090010079



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