IN THE CASE OF:	

		BOARD DATE:	25 March 2010  

		DOCKET NUMBER:  AR20090017413 


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, upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states he feels his punishment was much too severe for the action he undertook at the age of 19.  He states that prior “to this incident” he was awarded two Purple Hearts and still suffers greatly from these wounds along with PTSD (Post Traumatic Stress Disorder).  He states, in effect, that the characterization of his discharge is preventing him from receiving treatment and compensation for the disabilities he incurred in Vietnam.  He states he served honorably until he was talked into doing something, after drinking with his buddies, but he did not commit any crime.  He states he was just there and so he too was charged with the crime.

3.  The applicant provides documents from the Social Security Administration and Department of Veterans Affairs (VA) regarding his treating for PTSD and the fact that his discharge is a bar to benefits except for health care for service-connected disabilities.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 15 March 1963 after receiving a waiver as a youthful offender.  His enlistment document indicates he was with another juvenile who stole some tires.  Both he and the other juvenile were released to their parents.  The applicant was 17 years old at the time he enlisted.

3.  Following successful completion of training, the applicant was assigned to an aviation unit in Vietnam in September 1963.  While in Vietnam, the applicant was advanced to pay grade E-3, wounded twice (23 January 1964 and 14 March 1964), and awarded an Air Medal.  As a result of his second wound, the applicant was medically evacuated from Vietnam and by October 1964 had been assigned to Fort Rucker, AL.  In December 1964 he was advanced to pay grade E-4.

4.  In February 1965 the applicant was convicted by a special court-martial for stealing $150.00 from another Soldier.  His sentence included reduction to pay grade E-1, confinement at hard labor for 6 months, and a forfeiture of pay.

5.  On 26 August 1965 the applicant was apprehended by civilian authorities for petty larceny.  He was tried and convicted by civilian authorities and sentenced to 15 days in jail.  He returned to military control on 16 September 1965.  As a result of the applicant’s civilian confinement, he was subsequently convicted, on 27 September 1965, by a summary court-martial for being absent without leave (AWOL) between 26 August 1965 and 15 September 1965.  His sentence included confinement without hard labor for 6 months and a forfeiture of pay.

6.  On 17 November 1965 the applicant appeared with counsel before an administrative separation board which was considering whether he should be discharged under the provisions of Army Regulation 635-209 (Personnel Separations-Discharge-Unsuitability) for unsuitability.  The board ultimately concluded the applicant should be discharged for unsuitability based on apathy and character and behavior disorders and recommended he be issued an honorable discharge certificate.  There were no medical records available to the Board indicating the applicant was diagnosed with character and behavior disorders by a psychiatrist.
7.  The appropriate discharge authority approved the board’s findings and recommendation on 22 November 1965.  The applicant was 20 years old at the time of the board proceedings.

8.  It is not clear from available records what transpired following the 
22 November 1965 approval of the applicant’s administrative separation board proceedings.  However, a statement in the applicant’s file indicates that as of 
6 December 1965 he was confined by civil authorities at the Pyke County Jail in Troy, AL pending civil action and by the time of his July 1966 discharge he was confined at the Kilby State Prison in Montgomery, AL.  A subsequent entry in the applicant’s file indicates he was convicted and sentenced to 18 months for burglary and grand larceny.

9.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates the applicant was discharged with an undesirable discharge on 8 July 1966 under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) prior to the expiration of his term of service.  The special program number (SPN) 284 shown on his DD Form 214 indicates separation by reason of misconduct - conviction by a civilian court during current term of active military service.

10.  In January 1976 the Army Discharge Review Board (ADRB) denied the applicant’s petition to upgrade the character of his discharge citing the applicant’s record of misconduct and ultimate conviction by civilian authorities.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement n excess of   1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.




12.  Army Regulation 635-209, then in effect, set forth the policy and procedures for separation of enlisted personnel for inaptitude or unsuitability.  This regulation provided that when it was determined, through proper board action, that an individual could not be developed to the extent where he may be expected to absorb further military training and/or become a satisfactory Soldier he will be discharged.  This regulation provided, in pertinent part, that a Soldier was to be 
discharged for unsuitability when it was determined he was unsuitable due to character or behavior disorders in schizoid, paranoid, cyclothymic, inadequate or asocial personalities.  This regulation further provided that separation for unsuitability would be accomplished in cases of individuals manifesting such 
personality patterns when appropriate on the basis of adjustment, behavior or performance in service.  Paragraph 8 directed that an individual discharged for unsuitability would be furnished a General Discharge Certificate.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it appears the applicant, after approval of his administrative discharge under the provisions of Army Regulation 635-209 for unsuitability and prior to the separation being executed, was involved in a civil offense which resulted in his conviction and confinement by civilian authorities.

2.  The applicant’s argument that he suffered from PTSD is not supported by any evidence of record and his argument that his youth should somehow excuse his misconduct is not sufficiently mitigating to warrant the relief requested.

3.  The applicant’s discharge as a result of misconduct was appropriate and in the absence of evidence to the contrary is presumed to have been carried out in accordance with applicable laws and regulations.  His desire to have the characterization of his service upgraded in order to receive VA benefits is understandable but does not serve as a basis to grant relief.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20090017413



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ABCMR Record of Proceedings (cont)                                         AR20090017413



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