IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090012050 


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 to either a general discharge under honorable conditions or to an honorable discharge.

2.  The applicant states, in effect, that he was 17 years old when he enlisted in the Army.  He continues that he was naive and did some childish things, but he contends that he was mistreated.  The applicant attributes his problems to Post Traumatic Stress Disorder (PTSD).  He concludes that he did not apply for an upgrade of his discharge sooner because he was too sick to care, he was on large doses of Thorazine, and he took drugs to forget.

3.  The applicant provides in support of his request copies of his entire service personnel record and service medical record which were obtained from the National Archives and Records Administration.  He also provides copies of information extracted from his civilian medical records showing he applied to the Department of Veterans Affairs (VA) on two occasions and the VA responses to his applications.  

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 was born on 22 August 1950.  On 5 August 1968, the applicant enlisted in the Regular Army, with his father's consent, at the age of 17 years, 11 months, and 15 days.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 70A (General Clerk).  At a later date, he reclassified into MOS 71B (Clerk Typist).  The highest rank/grade the applicant attained while serving on active duty was private (PV2)/pay grade E-2.  However, at the time of separation he held the rank/grade private (PV1)/pay grade E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 December 1968 for absenting himself without authority from his unit; and on 2 August 1969 for disobeying a lawful order from a senior commissioned officer.

4.  Headquarters, 4th Combat Support Training Brigade, Fort Jackson, South Carolina, Special Court-Martial Order Number 56, dated 21 March 1969, shows the applicant was tried and convicted by a special court-martial for violation of Article 90 of the UCMJ by absenting himself without authority from his unit; and two specifications of violation of Article 134 of the UCMJ by breaking restriction.  As a result of his conviction, the applicant was sentenced to confinement at hard labor for 6 months and a forfeiture of $46.00 pay for 6 months.  The sentence was adjudged on 20 March 1969.  On 21 March 1969, the sentence was approved, and the execution of the confinement at hard labor portion of the sentence was suspended for a period of 6 months unless it was sooner vacated.  On 16 August 1969, the suspension was vacated and the applicant was placed into confinement at the U.S. Army, Republic of Vietnam (USARV) Installation Stockade.

5.  The applicant's record contains four DD Forms 508 (Report of/or Recommendation for Disciplinary Action) and four USARV Forms 1 Number 11 (Report of Observation/Disciplinary Infraction) rendered during the period 31 August through 3 October 1969 which show the applicant's misconduct and the disciplinary actions taken during his confinement in the USARV Stockade.  His offenses included refusing to follow lawful orders on numerous occasions, breaking numerous established rules, and being disrespectful towards the prison staff on several occasions.  His punishments included extra duty, loss of privileges, segregation, loss of good conduct time, and a restricted diet.

6.  U.S. Army Correctional Holding Detachment, USARV letter, Subject:  Notification of Elimination Proceedings, dated 26 September 1969, shows the commanding officer notified the applicant that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), for unfitness.  The commander informed the applicant that the basis for this recommendation was his history of commission of court-martial offenses.  The commander continued by advising the applicant of his rights to have his case presented before a board of officers, to be represented by counsel, to submit written statements in his own behalf, or he could waive these rights in writing.

7.  A 935th Medical Detachment letter, Subject:  Report of Psychiatric Evaluation (applicant's standard name line), dated 27 September 1969, shows the applicant underwent a psychiatric evaluation on this date.  The examining psychiatrist diagnosed the applicant with chronic, moderate, emotional instability manifested by immature acts and behavior leading to problems with authority, severe stress, and highly structured environments.  The psychiatrist found the applicant met the regulatory retention standards and there was no psychiatric disease or defect which warranted disposition through medical channels.  He also opined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in separation board proceedings.  The psychiatrist further opined that the applicant's condition and problems were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification into another type of duty within the military.  He concluded that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful and recommended that he be administratively separated from the military under the provisions of Army Regulation 635-212.

8.  The applicant consulted with legal counsel regarding the basis for the contemplated separation action for unfitness.  After consulting with counsel, the applicant requested consideration of his case by a board of officers, personal appearance before a board of officers, and representation by an appointed military or hired civilian counsel.  He also elected not to submit statements in his own behalf.  The applicant acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event he was issued an undesirable discharge.  He indicated he also understood that, as a result of the issuance of an undesirable discharge, 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.

9.  The applicant’s military service records contain a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), both dated 28 September 1969.  These documents were completed in connection with the applicant’s separation medical examination and show the applicant stated his present health was “Good.”  The examining physician found the applicant qualified for separation.  The applicant indicated he had no difficulty sleeping, frequent or terrifying nightmares, signs of depression, excessive worry, loss of memory or amnesia, or nervous trouble of any sort.  His records also contain a DA Form 3082-R (Statement of Medical Condition), dated 24 October 1969, that shows the applicant confirmed he underwent a separation medical examination more than 3 working days prior to his separation and that there had been no change in his medical condition.

10.  The commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness and that he be issued an Undesirable Discharge Certificate (DD Form 258A).  The discharge was recommended because of habits and traits of character manifested by repeated commission of court-martial offenses.  He concluded that the applicant had habitually shirked his duties, had an overall disregard for military authority, and he did not respond to rehabilitative efforts.

11.  On 12 October 1969, the intermediate commander recommended approval of the separation action under the provisions of Army Regulation 635-212 with an undesirable discharge.  He requested a waiver of further counseling and rehabilitation requirements.

12.  On 12 October 1969, the separation approval authority waived further counseling and rehabilitation and approved the applicant's discharge.  He directed that the applicant be reduced to the lowest enlisted grade, that he be issued an Undesirable Discharge Certificate, and reassigned to the U.S. Army Transfer Station, Oakland Army Terminal, Oakland, California, for separation.

13.  Headquarters, U.S. Army Personnel Center, Oakland, CA, Special Orders Number 297, dated 24 October 1969, ordered the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness, effective
24 October 1969, with an Undesirable Discharge Certificate.

14.  The DD Form 214 issued to the applicant at the time confirms he was discharged accordingly.  He had completed a total of 1 year and 3 days of creditable active military service and he had 77 days of lost time due to being AWOL and in confinement.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

16.  The applicant provides copies of documents which show he applied to receive benefits from the VA on 24 October 1969 and 3 February 2005.  In both instances, the VA advised the applicant that his undesirable discharge rendered him ineligible for VA benefits.  There is no mention of PTSD or any other psychiatric condition contained in either of the applicant's requests for VA benefits.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

18.  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.

19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded was carefully considered and determined to lack merit.

2.  Although the applicant contends he was only 17 years old at the time of his enlistment, his record shows he enlisted just 15 days prior to his 18th birthday.  That said, the applicant was the same age or older than many other Soldiers who successfully completed their military service obligations.

3.  There is no medical evidence of record, and the applicant failed to provide evidence, sufficient to show he was suffering from PTSD at the time of his discharge.

4.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on two occasions as well as conviction by a special court-martial for various offenses.

5.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, due to unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

6.  The available evidence show the applicant was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

7.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is also noted that the characterization for this type of service is normally undesirable and that the applicant was made aware of this prior to his discharge.

8.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either a general discharge 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)                                         AR20090012050



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ABCMR Record of Proceedings (cont)                                         AR20090012050



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