IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100014341 


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 to a general discharge.

2.  The applicant states he is receiving treatment and counseling for post traumatic stress disorder (PTSD).  He states that at the time of reenlistment he had periods of trouble and received punishment under the Uniform Code of Military Justice (UCMJ) as a result of alcohol-related issues but he was allowed to reenlist.  He also states that he was not given the type of counseling that was needed to help him figure out what was going on and he now believes that his period of disobedience was due to the condition known as PTSD.

3.  The applicant provides DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 16 May 1966 and 
8 December 1969 and a Department of Veterans Affairs Form 21-4142 (Consent to Release Information).

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 enlisted in the Regular Army on 16 June 1964 for 3 years.  He completed initial entry training and was awarded military occupational specialty 12A (Pioneer).  He arrived in Germany on/or about 12 November 1964.  On 
17 May 1966, he reenlisted for 3 years.

3.  On 25 April 1967, he was found guilty by a special court-martial of leaving his guard post before being regularly relieved, of being under the influence of alcohol, and of wrongful appropriation of a 5-ton truck (the property of the United States).

4.  He accepted nonjudicial punishments (NJP):

	a.  on 29 July 1967, for failing to report to his appointed place of duty;

	b.  on 30 August 1967, for being absent from his place of duty for an entire day;

	c.  on 9 October 1967, for being absent from his place of duty, unauthorized use of a military vehicle, and for being off post without the proper pass;

	d.  on 16 October 1967, for not walking his post as a sentinel of the guard; and

	e.  on 24 October 1967, for breaking restriction.

5.  He arrived in the Republic of Vietnam on 10 January 1968.  He accepted NJP on 19 July 1968 for being incapacitated for the performance of his duties due to previous intoxication.

6.  He departed the Republic of Vietnam on 10 January 1969 for assignment to Fort Hood, Texas.

7.  He accepted NJP:

	a.  on 4 March 1969, for failing to report to his place of the duty at the proper time;
	b.  on 7 March 1969, for breaking restriction and violating a 48-hour bed rest order;

	c.  on 9 April 1969, for being absent from his unit without proper authority and without signing out before going to jail;

	d.  on 15 April 1969, for having his vehicle on-post without proper registration and for leaving it unsecured;

	e.  on 6 May 1969, for being absent without Leave (AWOL) from 25- 29 April 1969 and for crossing the border into Mexico without proper authority; and

	f.  on 11 June 1969, for leaving his place of duty without authority and for losing a vehicle (Jeep), military property of the United States.

8.  On 8 August 1969, he was advised by his commander he was being recommended for discharge from the service under the provisions of Army Regulation 625-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  He was also advised he had the right to appear before a board of officers, to submit a statement in his own behalf, to be represented by counsel, or to waive those rights in writing.

9.  On 8 August 1969, he consulted with counsel and was advised of the basis for the contemplated separation action, of its effects, and of the rights available to him.  Subsequent to this counseling, he waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.

10.  On 12 August 1969, he underwent a psychiatric evaluation and was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  The evaluating physician concluded there were no disqualifying mental defects sufficient to warrant disposition through medical channels and cleared him for any administrative decision deemed appropriate by his command.

11.  On 13 October 1969, he was found guilty by a special court-martial of two specifications of being AWOL from 19 through 21 September 1969 and             27 through 29 September 1969 and for disobeying a lawful command from his commanding officer.

12.  On 19 November 1969, the separation authority approved his discharge under the provisions of Army Regulation 635-212 and directed that he be issued an Undesirable Discharge Certificate.  On 8 December 1969, he was discharged with a character of service of under conditions other than honorable and issued an Undesirable Discharge Certificate.

13.  On 10 June 1970, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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's contention that his discharge should be upgraded has been carefully considered.

2.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Additionally, he did not provide any evidence showing that he suffered from PTSD as a result of any of his experiences while in the military.

3.  His record of indiscipline includes nonjudicial punishment on 12 occasions and 2 special court-martial convictions.  About half of this misconduct occurred before he ever went to Vietnam.  Based on this 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, he is not entitled to a general discharge.

4.  Based on the foregoing, there is no basis to grant his 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)                                         AR20100014341



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ABCMR Record of Proceedings (cont)                                         AR20100014341



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