IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100022240 


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 that at the time of his service he had post traumatic stress disorder; therefore, he could not control his behavior.  He has been diagnosed with this disorder and other illnesses related to his military service in the Republic of Vietnam from 1966 to 1967.  He states he is also seeking a discharge upgrade so he can pursue Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a letter from the VA, dated 9 August 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.  The applicant was inducted into the Army of the United States on 13 December 1962 for a period of 2 years.  He completed his initial entry training and he was awarded military occupational specialty (MOS) 053.60 (Radio Teletype Operator).  The highest rank/grade he attained during this first period of service was sergeant (SGT)/E-5.

3.  On 11 December 1964, he was honorably released from active duty upon the expiration of his term of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirming he served 1 year, 11 months, and 29 days of total active service.

4.  On 9 February 1965, he enlisted in the Regular Army for a period of 6 years.  He retained his MOS as a radio teletype operator.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 19 August 1965 through 12 August 1966.  His record is void of documentary evidence showing awards or decorations for acts of valor or meritorious achievement.

5.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 15 July 1965, for being absent without leave (AWOL) from 12 July to 13  July 1965
* on 12 November 1965, for dereliction of duty while serving in the Republic of Vietnam on 8 November 1965
* on 22 November 1966, for being AWOL from 10 November to 16 November 1966

6.  On 1 August 1967, the applicant was tried and convicted by a special court-martial for being AWOL from 3 July to 7 July 1967 and for breaking restriction on three separate occasions.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of pay for 3 months, and confinement at hard labor for 3 months.

7.  On 30 August 1967, the applicant received elimination notification from his commander under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability).  He was advised he could receive an undesirable discharge. 

8.  On 1 September 1967, the applicant received a mental status evaluation by a medical doctor who found no evidence of underlying, unrecognized, or medically disqualifying emotional illnesses.  The doctor cleared the applicant for any administrative action deemed appropriate by the applicant's chain of command.

9.  The applicant's commander recommended a board of officers be convened to consider separating the applicant for unfitness.  In his letter, the company commander stated the applicant had accepted NJP and he was convicted by one special court-martial.  He stated the applicant did not respond to counseling or punishment and he was beyond rehabilitation.  He concluded by stating the applicant's conduct and efficiency ratings were unsatisfactory.

10.  On 21 September 1967, counsel was appointed to represent the applicant. 

11.  On 22 September 1967, the applicant acknowledged receipt of his separation board hearing notification.  

12.  On 6 October 1967, a board of officers convened to determine and recommend whether the applicant should be separated for unfitness under the provisions of Army Regulation 635-212 due to repeated acts of misconduct.  The applicant was personally present during all open sessions, he was advised of his rights and allowed to cross-examine witnesses, and he had a defense counsel represent him at the proceedings.  During the proceedings, he stated he understood his rights.

13.  The separation board proceedings show that the applicant testified before the board of officers.  In his testimony, he stated that his first enlistment period was honorable and that prior to his assignment to 74th Signal Company, he had received "excellent" conduct and efficiency ratings.  He testified he went AWOL because he had family and financial problems.  He acknowledged he had difficulties returning to post due to a lack of transportation.  He also stated he had received the Army Good Conduct Medal at the end of his first enlistment period and that he served in the Republic of Vietnam with no disciplinary problems.

14.  After considering all the evidence and witness statements presented before it, the board of officers recommended the applicant be discharged from military service under the provisions of Army Regulation 635-212 for unfitness with no rehabilitation requirement.  By majority vote, the board also recommended issuance of an Undesirable Discharge Certificate.

15.  The appropriate authority approved the findings of the board on 12 October 1967 and directed the issuance of an Undesirable Discharge Certificate.
16.  Accordingly, on 20 October 1967, the applicant was discharged.  The authority and reason for discharge shown on his DD Form 214 is Army Regulation 635-212, SPN [Separation Program Number] 28B [Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities].  He had completed 2 years, 5 months, and 7 days of net active service during this second enlistment period.  He received a characterization of service of under conditions other than honorable and he received an Undesirable Discharge Certificate.  His DD Form 214 further shows he had 45 days of time lost.
 
17.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

18.  In support of his application, the applicant provided a letter from his VA program director attesting to the fact he was diagnosed with combat-related post traumatic stress disorder and that he was receiving medical treatment.  The program director's assessment was the applicant's second military discharge was secondary to his undiagnosed post traumatic stress disorder.  He concluded by stating the applicant could not maintain employment due to his current psychiatric and medical diagnoses.

19.  References:

	a.  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 6a(1) of this regulation provided, in pertinent part, that members were subject to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities; for drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; and for an established pattern of shirking responsibility.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop as a satisfactory Soldier, further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

	b.  Army Regulation 635-212 also states, in pertinent part, that in the processing of an administrative discharge, unit commanders notify Soldiers that they were being considered for separation and the type of discharge that they could expect to receive.  Soldiers would acknowledge that they understood that they could expect to encounter substantial prejudice in civilian life with a general discharge or undesirable discharge.  In addition, they acknowledge that they can be deprived of many or all Army benefits; that they could be ineligible for many or all benefits administered by the VA; and that they could be deprived of their rights and benefits as a Veteran under both Federal and state law. 

	c.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

	d.  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.  While the VA is of the opinion the applicant suffered from post traumatic stress disorder during his second enlistment, this is not reflected by the applicant's psychiatric evaluation given to him in conjunction with his separation processing. 

2.  The evidence of record shows he accepted NJP for disciplinary infractions that included dereliction of duty while stationed in the Republic of Vietnam.  He also was convicted by a special court-martial after his combat service and he had 45 days of lost time.  Further, he had AWOL time prior to ever arriving in Vietnam.  Based on the evidence, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his service was determined to be unfit and he is not entitled to a general or an honorable discharge.

3.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  In fact, during his psychiatric evaluation, it was determined he had no underlying, unrecognized, or medically disqualifying mental illnesses.  Therefore, the type of discharge directed and the reason for his discharge were appropriate considering all the known facts of this case.

4.  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 has failed to submit evidence that would satisfy this requirement.  In addition, the ABCMR does not upgrade a properly issued discharge solely for the purpose of establishing benefit eligibility for Federal or state agencies.
5.  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)                                         AR20100022240



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022240



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1