IN THE CASE OF:	  

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017516 


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 general discharge (GD) under honorable conditions be changed to a medical discharge.  

2.  The applicant states that he was going to sessions with a psychiatrist when he was assigned to Vietnam.  His son died, his best friend’s plane crashed, and he could not handle it.

3.  The applicant provides no documentary evidence 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.  On 30 September 1965, the applicant enlisted in the Regular Army for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 76A (Supply Clerk).  The highest grade he attained was pay grade E-3.

3.  On 17 September 1966, the applicant received nonjudicial punishment (NJP) for sleeping while on guard duty, for being absent without leave (AWOL) from 
0915 hours to 1230 hours on 14 September 1966, for being sloppy in appearance, and for not wearing the proper accoutrements on his uniform.  His imposed punishment was a reduction to pay grade E-2, 14 days of restriction, and 14 days of extra duty.

4.  On 13 February 1968, a special court-martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 15 January to 14 November 1967.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $41.00 pay for 
6 months.

5.  On 11 June 1968, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 20 April to 9 May 1968.  The resultant sentence was confinement at hard labor for 2 months.

6.  On 23 September 1968, the applicant received NJP for being AWOL from 
25 August to 18 September 1968.  His imposed punishment was a forfeiture of $35.00 pay for 2 months.

7.  On 6 March 1969, while assigned to a unit in Vietnam, an SPCM found the applicant guilty of violating Article 113 of the UCMJ by sleeping while on guard duty.  He was sentenced to confinement at hard labor for 6 months (confinement in excess of 1 month was suspended for 3 months), a forfeiture of $46.00 pay for 6 months, and a reduction to pay grade E-1.  

8.  On the same date, the commander notified the applicant that a board of officers would convene for the purpose of determining whether he should be discharged under the provisions of Army Regulation 635-212 before the expiration of his term of service.  The commander’s recommendation was based on the applicant’s frequent acts of a discreditable nature with military authorities manifested by repeated commission of petty and more serious offenses and the applicant’s refusal to conform to minimum military standards of conduct and efficiency.  Elimination for unsuitability was not considered appropriate because the applicant’s performance was not due to incapacity to become a satisfactory Soldier within the meaning of unsuitability.  

9.  The board of officers met, and after reviewing the applicant’s record, recommended that the applicant be discharged under the provisions of Army Regulation 635-212, for unfitness, with an undesirable discharge.  

10.  On 17 March 1969, the Commanding General approved the discharge recommendation, waived further counseling and rehabilitation, and directed that the applicant be discharged under the provisions of Army Regulation 635-212 due to unfitness with an Undesirable Discharge Certificate.  

11.  On 27 March 1969, the applicant was discharged accordingly.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 2 years, 2 months, and 24 days of creditable active military service and he accrued 459 days of lost time due to being AWOL and in confinement.  

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

13.  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 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a GD under honorable conditions or an honorable discharge if warranted by the member's record of service; however, when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 governs the current policies and procedures 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  On 19 May 1977, the applicant’s discharge was examined by the Army Discharge Review Board (ADRB) under the Department of Defense Discharge Review Program (Special).  After careful consideration of the applicant's entire service record,the board determined that the applicant’s discharge should be upgraded to a GD under honorable conditions.  

16.  On 1 August 1978, the ADRB re-reviewed the applicant’s upgraded discharge as required by law.  As a result of the review, the board determined that the applicant did not qualify for the upgrading under the new uniform standards and the ADRB did not affirm the upgraded discharge. The upgraded discharge does not entitle an individual to any benefits administered by the Department of Veterans Affairs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be changed to a medical discharge because he was seeing a psychiatrist while assigned to Vietnam due to the death of his son was carefully considered.  However, there is no evidence in his military record nor has the applicant provided any medical evidence to show he qualified for a medical discharge. 

2.  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 his rights were fully protected throughout the separation process.  

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)                                         AR20090017516



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ABCMR Record of Proceedings (cont)                                         AR20090017516



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