IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020169 


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 undesirable discharge (UD).

2.  The applicant states that after serving in the Republic of Vietnam (RVN) and being medically evacuated, he became mentally unstable, probably due to post-traumatic stress disorder, and exhibited some unmilitary behavior.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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 1 April 1971 and was trained in and awarded military occupational specialty 63C (Track Vehicle Mechanic).  His record also shows he was promoted to the rank and grade of specialist four/E-4 on 21 December 1971 and that this is the highest rank he attained while serving on active duty.

3.  The record shows he served in the RVN from 17 March 1972 through 30 September 1972.  A commander's statement titled, "Description of Rehabilitation," in the record shows the applicant was identified as a drug user on 18 July 1972.  He was referred to the drug treatment center on 31 July 1972 and he tested positive for opiates while under drug rehabilitation.  The commander indicated that numerous counselings by him and the executive officer concerning drug abuse were to no avail and that the commissioned and noncommissioned officers of the unit all believed further rehabilitative attempts at the unit level would be useless.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on the following six separate occasions for the offenses indicated:

	a.  25 January 1972 for failing to go to his appointed place of duty at the time prescribed,

	b.  13 July 1972 for failing to obey a lawful order,

	c.  26 July 1972 for failing to go to his appointed place of duty at the time prescribed,

	d.  8 January 1973 for being absent without leave from 15 to 29 December 1972,

	e.  31 May 1973 for failing to go to his appointed place of duty at the time prescribed, and

	f.  16 August 1973 for disobeying a lawful order.

5.  On 20 August 1973, the applicant underwent a mental status evaluation.  The examiner determined the applicant was mentally responsible and that he had the mental capacity to understand and participate in board proceedings.  The examiner further concluded the applicant met medical retention standards.

6.  On 21 August 1973, the applicant underwent a separation physical examination.  The Standard Form 88 (Report of Medical Examination) completed to document this examination shows the applicant suffered from no disabling mental or physical conditions that would have supported his separation processing through medical channels.  The examining physician assigned a physical profile of "111111" and determined the applicant was medically qualified for retention/separation.

7.  On 21 August 1973, the unit commander notified the applicant he was being recommended for discharge under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of unfitness.  The commander cited the applicant's frequent incidents of a discreditable nature as the basis for taking the action.

8.  The applicant consulted with legal counsel on 21 August 1973 and was advised of the basis for the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200, chapter 13, because of frequent incidents of a discreditable nature, its effects, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant completed a rights statement and elected to waive consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit statements in his own behalf.

9.  On 14 September 1973, the separation authority directed the applicant be discharged from the military under the provisions of Army Regulation 635-200, chapter 13, and that he be furnished a UD.  On 24 September 1973, the applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of Army Regulation 635-200, chapter 13.

11.  On 10 April 1979, after careful consideration of the applicant's entire record and the issues he presented, the Army Discharge Review Board determined his discharge was proper and equitable and unanimously voted to deny his request for an upgrade of the character of his discharge and not to change the authority and reason for his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for misconduct.  Members separated for misconduct normally received a UD.

13.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Paragraph 3-7b of Army Regulation 635-200 provides that a general discharge (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's contention that his discharge should be upgraded because he became mentally unstable after serving in the RVN has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant suffered from no disabling mental or physical condition at the time of his discharge processing that would have warranted his separation processing through medical channels, as evidenced by the mental status evaluation and separation physical examination completed in August 1973.

3.  The applicant's 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 no acts of valor or significant achievement, but it does reveal a significant disciplinary history that includes illegal drug use and his acceptance of NJP on six separate occasions, two of which he accepted while serving in the RVN and one of which he accepted before he ever arrived in the RVN.  Therefore, his record of service was not sufficiently meritorious to support the issuance of an HD or a GD at the time of his separation and does not support an upgrade to the character of service or change to the authority and narrative reason for discharge now.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.



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 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)                                         AR20100020169



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ABCMR Record of Proceedings (cont)                                         AR20100020169



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