BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016364 


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

2.  The applicant states his UD was upgraded but the Department of Veterans Affairs (VA) will not accept that upgrade.

3.  The applicant continues he served without incident before he was assigned to Vietnam.  After Vietnam his personal life and behavior was dramatically different.  Through the years his condition has gotten worse and he loses control in given situations.  This change was the direct result of his experiences in Vietnam.

4.  The applicant provides a complete copy of his military records.

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 military records show that he enlisted in the Regular Army on 12 October 1964 and  was awarded the military occupational specialty of light weapons infantryman.  On 18 June 1965, his MOS was changed to light vehicle driver.  He served in Vietnam as a wheeled vehicle mechanic from 30 September 1965 to 19 September 1966.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions between 15 November 1965 and 22 September 1967.  His offenses included absenting himself from his unit (three specifications); entering the installation without a pass; unlawfully striking a private in the left eye with his fist; and unlawfully striking a specialist in the face with his fist.

4.  The applicant was convicted by a summary court-martial on 4 May 1967 for wrongful appropriation of a Government vehicle and being absent without leave (AWOL) from 27 to 31 January 1967, 5 to 6 February 1967, and 13 to                28 February 1967.

5.  The applicant was convicted by a special court-martial on 22 June 1967 for failure to go to his place of duty and breaking restriction.  

6.  On 29 September 1967, the applicant was given a neuropsychiatric evaluation.  He was determined to be medically qualified for retention.  However, the applicant reported during the evaluation that he noticed a personality change in himself after having returned from Vietnam.  The applicant elaborated by saying that there were very few people telling him what to do in Vietnam and upon returning to the United States he could not accept authority.  The applicant added that he had increased his consumption of alcohol during the preceding year which resulted in the shortening of his temper which led to fights.

7.  The applicant's commander notified him of his intent to recommend his discharge for unfitness and of his rights in conjunction with that recommendation. The applicant waived his rights.

8.  On 10 October 1967, the applicant's commander forwarded his recommendation to discharge the applicant for unfitness.  

9.  The applicant's commander's recommendation was approved by the appropriate authority.  Accordingly, on 1 November 1967 the applicant was given a UD.

10.  On 20 October 1977, the applicant's discharge was upgraded to a general discharge under the DOD Discharge Review Program (Special) (SDRP).

11.  On 31 August 1978, the Army Discharge Review Board (ADRB) determined that his original characterization of service (under other than honorable conditions) was warranted and did not affirm the discharge upgraded under the SDRP.

12.  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 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted a UD was normally considered appropriate.

13.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

14.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

15.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP on four occasions and was convicted by both a summary and special court-martial.  Such misconduct certainly warranted a UD.

2.  The applicant was given a neuropsychiatric evaluation which determined he was medically qualified for retention.  During that evaluation the applicant said he did not like people telling him what to do and had gotten into fights because he had increased his consumption of alcohol.  The applicant has not submitted any matters which would warrant upgrading a properly-issued 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)                                         AR20100016364





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ABCMR Record of Proceedings (cont)                                         AR20100016364



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