IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010928 


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 undesirable discharge (UD) be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states that he now recognizes that many of his actions and attitudes were adversely influenced by combat induced post traumatic stress.

3.  The applicant provides the following documents in support of his application:

* Department of Veterans Affairs (VA) letter dated 19 February 2010
* VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post Traumatic Stress Disorder (PTSD))
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Veterans Benefits Manual document extracts
* Diagnostic Criteria from DSM-IV-TR document extracts

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 record shows he enlisted in the Regular Army on                   25 September 1968.  He served in military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was advanced to private first class (PFC)/E-3 on 18 March 1969 and this was the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 29 January 1970.

4.  The applicant arrived in Vietnam on or about 22 March 1969 and departed on or about 19 August 1970.  He had been awarded the Combat Infantryman Badge.

5.  The applicant's DA Form 20 also shows, in item 44 (Time Lost Under Section 972, Title 10, USC), he accrued 197 days of lost time between 18 July 1969 and 17 August 1970 as a result of being absent without leave (AWOL) and in confinement.

6.  The applicant’s record reveals a disciplinary history that shows on 15 January 1970 a special court-martial (SPCM) found the applicant guilty of the following charges of violating the indicated Articles of the Uniform Code of Military Justice (UCMJ):

* Article 90 – for willfully disobeying a lawful order given by his superior commissioned officer
* Article 117 – for wrongfully using provoking words towards his superior commissioned officer
* Article 89 – for being disrespectful towards his superior commissioned officer

7.  The resultant sentence was a forfeiture of $82.00 pay per month for 6 months, confinement to hard labor for 4 months, and reduction to PV1/E-1.

8.  On 18 April 1970, an SPCM found the applicant guilty of violating three specifications of Article 86 of the UCMJ for being absent without leave (AWOL) from 7 – 20 March 1970, 23 – 27 March 1970, and 2 – 5 April 1970.  The resultant sentence was confinement at hard labor for 4 months and forfeiture of $82.00 pay per month for 4 months.
9.  On 13 June 1970, the unit commander notified the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason
of unfitness based on his record of his history of offenses which led to his two convictions by SPCM.

10.  On 23 July 1970, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He further elected not to make a statement in his own behalf.

11.  On 11 August 1970, the separation authority approved the recommendation and directed the applicant receive a UD.  On 19 August 1970, the applicant was discharged accordingly.

12.  The DD Form 214 issued  to the applicant at the time confirms he completed a total of 1 year, 4 months, and 8 days of creditable active military service and that he accrued 107 days of time lost.

13.  The applicant's record is void of any medical treatment records or other documents that indicate he was ever treated for PTSD or any other disabling or disqualifying (unfitting) mental condition prior to his discharge.

14.  On 29 December 1976 and 17 December 1981, after having carefully reviewed the applicant’s record and the issues he presented on two separate occasions, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and denied his request for an upgrade of his discharge.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or GD if warranted by the member's overall record of service.  However, a UD was normally considered appropriate for members separating under these provisions.

16.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7b, provides that a GD 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 HD.  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 his UD should be upgraded to a GD because he now realizes the actions that led to his discharge were adversely influenced by combat induced post traumatic stress.

2.  The evidence of record confirms the applicant was properly advised by his commander that separation action was being initiated and that he was afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of rights.

3.  The record further shows the applicant was counseled concerning his rights, and he voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record documents a disciplinary history that includes two SPCM convictions.  As a result, it is clear his UD accurately reflects the overall quality of his service.  It is also clear his record did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.  Absent any evidence of record or independent evidence submitted by the applicant to support his claim that he was mentally ill at the time of his discharge processing, there is an insufficient evidentiary basis to support granting the requested relief in this case.

5.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100010928



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ABCMR Record of Proceedings (cont)                                         AR20100010928



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