IN THE CASE OF:	  

		BOARD DATE:	    25 March 2010

		DOCKET NUMBER:  AR20090014335 


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 discharge be upgraded to honorable.

2.  The applicant states, in effect, that at the time of his discharge he was diagnosed with post-traumatic stress disorder (PTSD) from his experiences serving in the Republic of Vietnam.

3.  The applicant provides a copy of a Compensation and Pension Examination for Mental Disorders Worksheet, dated 26 February 2008, provided by an examining psychiatrist.

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 28 May 1970 for 3 years.  He completed basic and advanced individual training meeting the qualifications for military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  The applicant served in the Republic of Vietnam from 12 January 1971 to 1 January 1972 with the 490th General Supply Company and at U.S. Army Depot Da Nang.

4.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions from 27 July 1971 through 3 January 1973.  The NJPs were for:

	a.  wrongfully possessing a suspected narcotic, marijuana;

	b.  violation of military regulations by possessing a knife with a 6-inch blade, a steel chain with intent to use as a deadly weapon, and improper military haircuts;

	c.  failure to go to his appointed place of duty at the time prescribed on two separate dates;

	d.  failure to obey lawful orders of superior commissioned and noncommissioned officers; and

	e.  being absent without authority from his prescribed place of duty.

5.  The applicant was tried and convicted by a special court-martial for misappropriation of government property and damaging the stolen government property, an M151A1 (Jeep), through neglect.

6.  On 25 October 1972, the commander directed the applicant's transfer to another military unit on the installation as part of a rehabilitative program.

7.  On 15 December 1972, the applicant was evaluated by a mental health professional.  The mental health professional found no evidence of underlying previously-unrecognized medically-disqualifying emotional illness.  He further indicated that the applicant was and is mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceedings.  The examiner granted psychiatric clearance for any administrative or disciplinary action deemed appropriate to the applicant's case by his command.  He also certified that the applicant met the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).


8.  There are no medical records available for the Board's review.  A separation physical was not attached to the separation documents in the applicant's official military personnel file.

9.  On 18 December 1972, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) before the expiration of his term of service.  The commander's recommendation was based on the applicant's frequent incidents of a discreditable nature with military authorities.

10.  The applicant submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance before said board.  The applicant stated he was submitting statements in his own behalf and requested representation by counsel.

11.  In his statement, applicant acknowledged that as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws.  He concluded his statement by saying that he would waive the aforementioned if he was furnished a general discharge upon his separation. 

12.  On 6 February 1973, a board convened at Fort Ord, CA, to consider the request by the applicant's chain of command to separate him prior to the expiration of his term of service due to unfitness in accordance with Army Regulation 635-212.  Counsel, who was allowed to cross-examine the evidence and witnesses brought before the applicant's separation board, represented the applicant.  Based on the evidence presented by witnesses, to include the applicant's extensive adverse disciplinary history, the board found the applicant unfit for further military service and recommended separation with a general discharge.

13.  On 16 February 1973, the separation authority approved the recommendation for elimination for unfitness and directed the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness with an under honorable conditions characterization of service.

14.  Accordingly, on 14 March 1973, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness with an under honorable conditions characterization of service.  He had completed 2 years, 9 months, and 17 days of creditable active service with no lost time under the provisions of Title 10, U.S. Code, section 972.

15.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

16.  The applicant provided a narrative summary from his psychiatrist, dated 26 February 2008.  The psychiatrist's diagnoses were that the applicant had a major depressive disorder and PTSD with both alcohol and polysubstance abuse and dependence in remission.  Additionally, the applicant has diabetes, hepatitis C, and suffers from chronic pain due to residuals from a gunshot wound.  The psychiatrist stated that the PTSD was from his experiences during enemy attacks on his base and from a gunshot wound which occurred during an accidental discharge incident on base.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) 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.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of a general under honorable conditions or undesirable discharge.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  He received a rehabilitative transfer and he was given a second opportunity to conform to military standards.  He did not conform, continuing with his substandard duty performance and demonstrating a lack of respect toward his chain of command and military regulations and directives.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation processes.

2.  There is no available medical evidence to support the applicant's contention that he had PTSD during his service.  In fact, the mental health professional who conducted the mental health evaluation prior to the separation board proceedings stated the applicant met the Army's retention standards with no sign of mental illness.

3.  The applicant's administrative separation complied with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.

4.  After a review of the applicant's record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable.

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)                                         AR20090014335



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ABCMR Record of Proceedings (cont)                                         AR20090014335



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