IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011758 


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, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that while assigned to Fort Knox, Kentucky, after returning from the Republic of Vietnam (RVN), he became depressed, angry, and emotional.  He further states that although post-traumatic stress disorder (PTSD) was not a big issue in 1970 and was not considered when he was discharged, he believes his emotions were the cause for his early discharge.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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's record shows he enlisted in the Regular Army and entered active duty on 19 April 1967.  He was trained in and awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver), and the highest rank he attained while serving on active duty was specialist four.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that during his tenure on active duty he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  He served in the RVN from               26 October 1968 through 17 October 1969.

4.  The applicant's record is void of any documents showing he suffered from PTSD or any other disqualifying physical or mental condition during his tenure on active duty or at the time of his discharge.

5.  The applicant's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six separate occasions for the offenses indicated:  24 February 1968, for being absent without leave (AWOL) from 20 February 1968 through 22 February 1968; 22 April 1968, for being AWOL on 22 April 1968; 2 July 1969, for being AWOL from 30 June 1969 through 1 July 1969; 15 July 1969, for failing to report for extra duty on 12 July 1969; 29 August 1969, for malingering while posted on lookout on 28 August 1969; and 17 October 1969, for being AWOL from 6 October 1969 through 16 October 1969.

6.  On 29 February 1968, a summary court-martial (SCM) found the applicant guilty of violating Articles 92 and 134 of the UCMJ as follows:  Article 92, by failing to obey a lawful order, and Article 134, for being drunk and disorderly in quarters.  The resultant sentence was confinement at hard labor for 1 month and a forfeiture of $68.00.

7.  On 23 January 1970, the applicant underwent a mental health evaluation.  The examining psychiatrist determined the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He further stated the applicant was cleared for any administrative action deemed appropriate by the command.

8.  On 23 January 1970, after being notified of his commander's intent to initiate action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness, the applicant consulted with legal counsel.

9.  After being advised by legal counsel of the basis for the contemplated separation, its effects, and of the rights available to him, the applicant completed an election of rights in which he waived his right to have his case considered by a by a board of officers, his right to a personal appearance before a board of officers, and his right to counsel.  He also elected not to make a statement in his own behalf.

10.  On 26 January 1970, the unit commander recommended the applicant be separated for unfitness under the provisions of Army Regulation 635-212.  He cited the applicant's habits and traits of character manifested by repeated commission of petty offenses and habitual shirking as the reasons for taking the action.

11.  On 13 February 1970, the separation authority approved the applicant's discharge and directed that he receive a UD.  On 18 February 1970, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant on the date of his separation confirms he completed a total of 1 year, 9 months, and 27 days of creditable active military service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for a change to his discharge within its 15-year statute of limitations.

13.  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 an HD or a general under honorable conditions discharge (GD) if supported by the member's overall record of service; however, a UD was normally considered appropriate for members separating under these provisions.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) is the current regulation governing enlisted separations provides guidance for issuing an HD in paragraph 3-7a.  It states, in pertinent part, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides guidance on issuing a GD and states, in pertinent part, 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he suffered from emotional problems that could have been considered PTSD after his return from the RVN and that these problems caused him to be discharged early was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant suffered from no disabling physical or mental condition at the time of his discharge.  It further shows that he underwent a mental status evaluation in conjunction with his discharge processing and that the examining psychiatrist determined he was mentally responsible for his actions.  As a result, there is no evidence suggesting he suffered from emotional problems that would have caused the misconduct that resulted in his discharge processing.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

4.  Although the applicant served in the RVN, his record is not sufficiently meritorious to support an upgrade of his discharge at this late date.  His record reveals an extensive disciplinary history that includes his acceptance of NJP on six separate occasions and an SCM conviction.  His misconduct began before he ever arrived in the RVN.

5.  Given the applicant's disciplinary history, his record clearly did not support the issuance of a GD or HD by the separation authority at the time, nor does it support an upgrade of his discharge at this late date.  The applicant's UD accurately reflects his overall undistinguished record of service and, absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting the requested relief.

6.  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)                                         AR20090011758



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011758



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1