IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010116 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was unaware of the Department of Veterans Affairs (VA) benefits.  His discharge was related to post-traumatic stress disorder (PTSD) and mental break with assignment relating to the Vietnam War as well as the sudden death of his father.  Within months after his discharge, he had a mental breakdown and had to be hospitalized.

3.  The applicant provides the following documents:

* VA Form 21-526 (Veterans Application for Compensation and/or Pension)
* Illinois Department of Human Services fitness evaluation

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 records show he enlisted in the Regular Army for a period of 2 years on 30 July 1971 and held military occupational specialty 11H (Infantry Direct Fire Crewmember).  The highest rank he attained during his military service was private/E-2. 

3.  The applicant's records also show subsequent to completion of MOS training, he was assigned to Fort Ord, CA.  There is no indication he completed any foreign service.  His records further show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records reveal an extensive history of nonjudicial punishment under the provision of Article 15 of the Uniform Code of Military Justice as follows:

* On 20 January 1972, for twice failing to go at the time prescribed to his appointed place of duty
* On 25 January 1972, for failing to go at the time prescribed to his appointed place of duty
* On 5 April 1972, for failing to go at the time prescribed to his appointed place of duty
* On 16 May 1972, for willfully disobeying a lawful order
* On 6 June 1972, for twice willfully disobeying a lawful order
* On 12 June 1972, for failing to go at the time prescribed to his appointed place of duty and willfully disobeying a lawful order
* On 25 August 1972, for failing to go at the time prescribed to his appointed place of duty

5.  On 20 September 1972, he underwent a separation physical examination at Fort Ord, CA.  The attending physician indicated the applicant had no medical complaints and that he was qualified for discharge.

6.  His records also reveal two instances of being absent without leave (AWOL) from 14 to 15 November 1972 and 16 to 24 November 1972. 

7.  On 24 November 1972, he completed a Statement of Medical Condition wherein he indicated there had been no change in his medical condition.



8.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 1 December 1972 under the provisions of Army Regulation 635-212 (Personnel Separations) by reason of unfitness with a character of service of under other than honorable conditions.  He completed 1 year, 4 months, and 21 days of creditable active service and he had 11 days of lost time.

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

10.  He submitted the following documents:

	a.  A VA Form 21-526 wherein he requested VA compensation and indicated he was preparing for his Vietnam service when his father died and came back to his unit stressed.

	b.  An Illinois Department of Human Services fitness evaluation that shows a diagnosis of schizoaffective disorder, bipolar type; antisocial personality disorder, and hepatitis B. 

11.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

12.  Army Regulation 635-200 (Personnel Separations) 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.

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 applicant contends that his discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 1 December 1972 under the provisions of Army Regulation 635-212 by reason of unfitness.  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.  The applicant has provided no information that would indicate the contrary.

3.  The applicant’s records reveal a period of military service marred by an extensive history of various incidents of misconduct that included failing to repair, disobeying orders, and being AWOL.  Nowhere in his records does it show he suffered from PTSD, stress, or any medical condition or that he was refused medical treatment or that he went AWOL because of a medical condition.  Even if those allegations were true, there were many other avenues the applicant could have used to address those issues had he chosen to use them

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20100010116



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ABCMR Record of Proceedings (cont)                                         AR20100010116



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