BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100016773 


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 upgrade of his undesirable discharge.

2.  The applicant states he had what is now called post traumatic stress disorder (PTSD) but he did not receive medical treatment for it.  He believes PTSD was a major factor in his discharge.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service-Connection for PTSD), dated 30 May 2010; and VA Form 21-4138 (Statement in Support of Claim), dated 6 May 2010.

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.  On 31 July 1968, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training at Fort Sill, OK and he was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

3.  The applicant served as a cannoneer for approximately 1 year in the Republic of Vietnam from on or about 1 January 1969 to on or about 31 December 1969 and then returned to Fort Sill.

4.  The applicant's records show he received the following nonjudicial punishments (NJP)/court-martials:

	a.  26 January 1969: NJP for sleeping on guard duty;

	b.  27 September 1969: NJP for sleeping while on duty as a sentinel;

	c.  15 June 1970: summary court-martial for being absent without leave (AWOL) 5 to 9 June 1970;

	d.  21 August 1970: NJP for stealing five candy bars from the Main Post Exchange;

	e.  16 September 1970: summary court-martial for being absent without leave (AWOL) from 3 to 10 September 1970;

	f.  19 October 1970: NJP for being AWOL from 17 to 19 October 1970; and

	g.  2 November 1970: summary court-martial for being AWOL from 26 to 
28 October 1970.

5.  On 30 December 1970, the applicant’s commander recommended the applicant's separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The commander stated that the applicant had been reassigned for rehabilitation.  His dissenting attitude, characterized by repeated violations and indifferent personal conduct, had resulted in four NJP's and three courts-martial.

6.  The applicant consulted with counsel, and he elected not to make a statement in his own behalf and to waive representation by counsel.

7.  On 20 January 1971, the appropriate authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.


8.  On 25 January 1979, the applicant was discharged accordingly.  He completed 2 years, 3 months, and 15 days of total active service with 70 days of time lost.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  The applicant provided two VA forms.  In essence, he states on these forms that while in the Republic of Vietnam he had returned to Camp Eagle to process out when he was told his entire unit had been overrun by the enemy and everyone was killed.  He also states that the infantry had called for [artillery] support using incorrect coordinates resulting in friendly forces being shelled.  The applicant further relates how he had been sent directly from advanced individual training to the Republic of Vietnam.  When he returned to Fort Sill, he had been put on guard duty and kitchen police which felt like punishment, even though he had not been in any trouble.  He did not handle things very well, and believes his actions were the result of what is now recognized as PTSD.  He could not take the pressure and he went AWOL.  He kept his emotions and anger bottled up inside him until he could not take the pressure anymore.  He now realizes he needed help but did not know how to get it.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded because he had PTSD at the time.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  There is no available evidence showing that his repetitive AWOL's and misconduct were the direct result of PTSD or any other mental condition.

5.  Based on the applicant's record of AWOL his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This time lost renders his service unsatisfactory.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100016773



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016773



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1