IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090011583 


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 his undesirable discharge.

2.  The applicant states that he was a good Soldier as shown in his records and he has two honorable discharges.  However, he was in a deep state of depression (Post Traumatic Stress Disorder (PTSD)) at the time, but neither he nor the military understood that.  He adds that the medicine that the military put him on made him do crazy things.  He suffers from sleep deprivation, memory loss, and isolation.

3.  The applicant provides a copy of page 4 of his DA Form 2-1 (Personnel Qualification Record) and a copy of orders, dated 30 August 1968, awarding him the Combat Infantryman Badge 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 records show he was inducted into the Army of the United States and he entered active duty on 22 July 1965.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11D (Armor Intelligence Specialist).  

3.  He was honorably discharged on 2 September 1966 for the purpose of immediate enlistment and he executed a 6-year enlistment in the Regular Army (RA) on 3 September 1966.  He was honorably discharged on 19 November 1969 for the purpose of immediate reenlistment and executed a 6-year reenlistment in the RA on 20 November 1969.  The highest rank/grade he attained during his military service was staff sergeant (SSG)/E-6. 

4.  The applicant's records also show he served in Germany from 7 December 1965 to 1 May 1967; the Republic of Vietnam from 16 July 1967 to 15 July 1968; and again in Germany from 8 October 1969 to 26 November 1969 and
4 November 1970 to 7 December 1971.

5.  The applicant’s records further show he was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Army Good Conduct Medal (2nd Award), Marksman Marksmanship Qualification Badge with Rifle Bar, 2nd Class Gunner [Marksman] Marksmanship Qualification Badge with Machinegun Bar (M-60), and two overseas service bars.

6.  The applicant's records also reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 7 November 1966, for twice failing to go at the time prescribed to his appointed place of duty on or about 7 November 1966.  His punishment consisted of a forfeiture of $39.00 pay for one month and 14 days of restriction and extra duty;

	b.  on 4 January 1967, for being failing to report at the time prescribed to his appointed place of duty on or about 1 January 1967.  His punishment consisted of a reduction from private first class (PFC)/E-3 to private (PV2)/E-2;

	c.  on 20 July 1973, for being absent without leave (AWOL) during the period from on or about 11 July 1973 through on or about 15 July 1973.  His punishment 

consisted of a reduction to specialist five (SP5)/E-5 (suspended until 20 January 1974) and 45 days of restriction and extra duty. 

7.  On 24 January 1974, the applicant departed his Fort Bliss, TX, unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 22 February 1974.  He returned to military control on 2 May 1974. 

8.  On 14 May 1974, the applicant pled not guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 24 January 1974 to on or about 2 May 1974.  The Court found him guilty of the charge and specification and sentenced him to confinement at hard labor for 2 months, a forfeiture of $50.00 pay per month for 6 months, and reduction to private (PV1)/E-1.  The sentence was adjudged on 14 May 1974 and it was approved on 22 May 1974.

9.  The applicant's records reveal an extensive history of counseling sessions by various members of his chain of command for various infractions, including contempt toward authority, lack of enthusiasm, shirking responsibilities, refusal to report for duty and/or training, arrogance and belligerent speech, failing to comply with unit policies, absence from formation, disrespect to officers, failed performance, and frequent acts of misconduct.

10.  On 28 June 1974, the applicant's immediate commander notified the applicant of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unfitness.  The immediate commander cited the applicant's frequent incidents of a discreditable nature.

11.  On 28 June 1974, the applicant acknowledged receipt of the separation memorandum, he consulted with legal counsel, and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.

12.  Accordingly, the applicant's immediate commander initiated separation action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.  The immediate commander remarked that the applicant’s record and his failure to react constructively to the rehabilitation efforts indicated that he should not have been retained in the Army. He had received considerable counseling, but he did not respond favorably. 

13.  On 28 June 1974, the applicant’s intermediate commander recommended a waiver of further counseling and rehabilitative efforts and approval of the discharge action.

14.  On 2 July 1974, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  On 3 July 1974, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged with a character of service of under other than honorable conditions and he was issued an Undesirable Discharge Certificate. This form further confirms that he completed 8 years and 6 months of creditable active military service and he had 162 days of lost time.

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

16.  There is no evidence of record in the applicant's available medical records and the applicant did not provide any supporting documentation that indicates he suffered from depression, PTSD, sleep deprivation, memory loss, isolation, or any other medical condition.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unfitness whose record evidenced frequent incidents of discreditable nature with civil or military authorities.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in individual's case.  The type of discharge will be directed by the convening authority.

18.  Army Regulation 635-200, 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.

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 that his discharge should be upgraded.

2.  The applicant's records reveal an extensive history of counseling, indiscipline, and/or misconduct that began before he arrived in Vietnam including NJP, AWOL, and a court-martial.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  There is no evidence in the applicant’s records and the applicant did not provide any evidence that shows he suffered from depression, PTSD, or any other medical condition or that he addressed such conditions with the appropriate authorities.  Additionally, there is no evidence that the alleged PTSD caused his misconduct. 

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general, under honorable conditions or an honorable 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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20090011583



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