BOARD DATE:	7 October 2010  

		DOCKET NUMBER:  AR20100008961 


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 undesirable discharge be upgraded.

2.  The applicant states that he enlisted in the military with his parents' permission at the age of 17 to obtain his General Education Diploma (GED) and to learn a trade.  After he completed training and obtained his GED he was shipped to the Republic of Vietnam (RVN).  He is not sure what happened while in the RVN but the war affected his behavior and attitude and he received no help adjusting when he returned from the war.  He would like to put this part of his life behind him and benefits would be helpful to him and his family.  He also states he does not believe his punishment fit the crime.

3.  The applicant provides a copy of:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 May 1969
* a memorandum from the Pennsylvania Higher Education Assistant Agency, dated 10 April 2008

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 was born on 10 April 1949 and enlisted in the Regular Army (RA) on 18 April 1966 at the age of 17.  He completed the training requirements and he was awarded military occupational specialty 76V (Ordnance Supply Specialist) and assigned to the RVN from 20 October 1966 to 16 October 1967 when he was 17 years and 6 months old.

3.  He received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* On 18 August 1966 for being absent without leave (AWOL) from 7 through 8 August 1966
* On 24 February 1967 for failure to go at the time prescribed to his appointed place of duty 
* On 16 June 1967 for being absent for his place of duty on 12 and 14 June 1967
* On 2 February 1968 for failure to go to his appointed place of duty 
* On 6 June 1968 for being absent AWOL from 5 through 6 June 1968
* On 19 August 1968 for failure to obey a lawful order 

4.  The applicant's DA Form 20B (Record of Court-Martial Conviction) lists the following special court-martial convictions:

* On 30 July 1967 of wrongfully communicating a threat to a Soldier
* On 17 April 1968 of wrongfully appropriating three 5-gallon gas cans and breaking restriction
* On 5 November 1968 of pushing a noncommissioned officer (NCO) into a wall, disobeying a lawful order, and calling an NCO an unflattering name
* On 2 April 1969 of disobeying a lawful order on two different occasions and assaulting by striking

5.  A psychiatric evaluation was completed on the applicant on 16 April 1969.  The examining physician found the applicant suffered from passive-aggressive personality, chronic, moderate, manifested obstruction, inefficiency, persistent reaction to frustration with irritability, anger, hostility, fighting, and constantly projecting and blaming everyone else for his behavior; not in line of duty and existed prior to service (EPTS).  The psychiatrist found no evidence of any mental condition that would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  He added the applicant possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by the command and that the longstanding character and behavior disorder described would tend to exist permanently.

6.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The immediate commander stated the discharge was recommended because that applicant had two periods of AWOL, four SPCMs, and two nonjudicial punishments.

7.  On the same date, the applicant acknowledged 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 of his case by a board of officers and waived a personal appearance.  The applicant indicated he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged 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 that he may expect to encounter substantial prejudice in civilian life.

8.  On 12 May 1969 the applicant was discharged with an under other than honorable conditions characterization of service.  He had completed 2 years, 
4 months, and 10 days of active military service.  His DD Form 214 shows he had 234 days of lost time.

9.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  The applicant submitted a copy of a memorandum from the Pennsylvania Higher Education Assistance Agency dated 10 April 2008, concerning his status as a Veteran in the US Armed Forces.  

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200, 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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that after a psychiatric evaluation the applicant was diagnosed by competent military medical authority with a character and behavior disorder that was an EPTS condition and he was cleared for any administrative decision deemed appropriate by his command.

2.  The applicant's service record shows he received six Article 15s and four special courts-martial convictions for various offenses.  The evidence of record shows a total of 234 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His record shows he was 17 years of age at the time of his enlistment and he was 17, 18, and 19 years of age at the time of his offenses.  However, there is no evidence that indicates his Vietnam service contributed to his acts of misbehavior or misconduct.  In fact, he was given his first nonjudicial punishment for being AWOL prior to going to Vietnam.

4.  The applicant’s contention that he cannot get service-connected benefits because of his discharge was noted.  However, this issue is not sufficiently mitigating to warrant relief in this case.

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

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)                                         AR20100008961



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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