IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100021729 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states he was a combat veteran and his behavior was due to post-traumatic stress disorder (PTSD).  He further states his PTSD was untreated and ignored.

3.  The applicant provided no additional evidence. 

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 records show he enlisted in the Regular Army on 26 April 1967 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from on or about 5 December 1967 to 27 November 1968.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for the following reasons:

* on 29 September 1967 for disobeying a lawful order
* on 29 August 1968 for being in an off-limits residence
* on 28 October 1968 for being absent without leave (AWOL)
* on 29 October 1968 for being AWOL
* on 4 February 1969 for being AWOL

4.  On 5 June 1969, he was found guilty at a special court-martial of one specification of being AWOL from on or about 2 April to 11 April 1969 and one specification of being AWOL from on or about 15 April to 1 May 1969.  He was sentenced to confinement for 6 months and a forfeiture of $97.00 pay for 6 months.

5.  On 16 September 1969, he was referred for psychiatric evaluation pending an administrative separation.  The psychiatrist stated, in part, the applicant indicated he abused drugs prior to enlisting in the Army and he began using drugs upon his arrival in Vietnam due to the stress of being away from home and facing the pressures of combat.  The applicant told the psychiatrist he had no desire to give up the use of drugs and he planned on returning to drug use upon discharge from the Army.  The psychiatrist stated the applicant appeared to be an immature, passive-aggressive, confused individual who was exhibiting traits of a long-standing character and behavior disorder.

6.  The facts and circumstances of his discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 27 October 1969 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), SPN (Separation Program Number) 28B - unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  He completed 2 years, 2 months, and 7 days of creditable active service and he had 115 days of lost time.



7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  An individual was subject to separation for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Enlisted Separations), paragraph 3-7a, provides that an honorable discharge 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.

10.  Army Regulation 635-200, 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 evidence of record shows he received NJP on three occasions -- 1 during his service in Vietnam, 1 before, and 1 after.  He demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on five occasions for disobeying a lawful order, being in an off-limits residence, and for being AWOL.  He was also convicted by a special court-martial for two specifications of being AWOL. 

2.  In the absence of evidence to the contrary it is presumed his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20100021729



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ABCMR Record of Proceedings (cont)                                         AR20100021729



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