IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100025638 


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, in effect, to have his Undesirable Discharge upgraded to a General Discharge, Under Honorable Conditions.

2.  He states he returned from Vietnam completely mixed up and today it would be classified as Post-Traumatic Stress Disorder (PTSD).  He went absent without leave (AWOL) on two occasions after his return from Vietnam and cannot explain why he did it.  

3.  He contends that before he joined the Army, he lived out in the country on his family farm.  He never encountered any trouble with the law or in school; just trouble after his return from Vietnam.  

4.  He provided:

* his initial enlistment document
* a DA Form 20 (Enlisted Qualification Record)
* a DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ))
* a special court-martial order
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)




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.  His DD Form 4 (Enlistment Record – Armed Forces of the United States) shows he enlisted in the Regular Army on 7 March 1966 for 3 years.  After the completion of training, he served in military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 shows:

* Item 31 (Foreign Service) he served in Vietnam from 5 April 1967 through 7 November 1968
* Item 33 (Appointments and Reductions) the highest rank/grade he attained while on active duty was specialist four/E-4 (temporary)
* Item 38 (Record of Assignments) he received unsatisfactory ratings in conduct and performance on 15 April 1968 through 1 April 1969, to include while serving in Vietnam
* Item 41 (Awards and Decorations) he earned the Air Medal, the Combat Infantryman Badge, and typical service awards
* Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service) consists of the following periods of AWOL: 
		
* 2 to 6 July 1966
* 4 August 1966 to 19 January 1967
* 6 to 21 January 1969
* 21 February to 27 September 1969

4.  He provided a DA Form 2627-1 that shows nonjudicial punishment was administered to him on 7 July 1966 for going AWOL from 3 to 7 July 1966.

5.  He also provided a copy of Headquarters, 3rd Training Brigade (Infantry), U.S. Army Training Center, Special Court-Martial Order Number 16, dated 31 January 1967.  This order shows that on 31 January 1967 he was charged with one specification of violating Article 86 of the UCMJ for going AWOL from 4 August 1966 to 9 January 1967.  

6.  His record shows he was given an evaluation from the Headquarters, U.S. Army Field Artillery Center and Fort Sill, stockade chaplain on 19 January 1970.  At the time of the chaplain’s assessment, he was 22 years of age and had three convictions by court-martial and 369 days lost time due to AWOL and confinement.  He got into trouble with his first sergeant during advanced individual training and subsequently went AWOL.  

7.  The statement also shows he volunteered to go to Vietnam and served 
19 months.  He refused any further extension in the Army stating that he had lost all interest in useful service to the Army.  The chaplain noted that the applicant’s attitude was bitter, hostile, and negative.  His past record indicated he was no longer capable of useful service and he recommended the applicant be discharged from military service. 

8.  On 26 January 1970, the company commander initiated separation action on him under Army Regulation 635-212 (Discharge-Unfitness and Unsuitability) and stated the reason was his two special courts-martial convictions for violating Article 86 of the UCMJ for going AWOL and one special court-martial for violating Articles 86, 108 and 121 for going AWOL, wrongful appropriation, and damage of an M151A1C (Mutt Vehicle).  His commander also noted that due to his dislike for the military service, lack of self-motivation, and negative attitude toward the military, he believed the applicant would continue to violate Article 86 of the UCMJ.  

9.  On 26 January 1970, he consulted with the defense counsel at Fort Sill, OK and was advised of his rights.  He waived his right to have his case considered by a board of officers, to a personal appearance, and representation by counsel.  He elected not to submit any statements on his own behalf.  

10.  He also indicated that he was aware that as a result of the issuance of an undesirable discharge that he may be ineligible for any or all benefits as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life based on that undesirable discharge.

11.  On 4 February 1970, the appropriate authority approved the applicant's discharge under provisions of Army Regulation 635-212 and directed he be issued an Undesirable Discharge Certificate.  
12.  Accordingly, he was discharged under other than honorable conditions on 
6 February 1970, under the provisions of Army Regulation 635-212 by reason of unfitness with an undesirable discharge.  He completed 2 years, 5 months, and 
9 days of net active service and 1 year, 7 months, and 3 days of foreign service in Vietnam.  He had a total of 624 days of lost time due to AWOL and military confinement.  

13.  There is no evidence in the available records to show that the he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

14.  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, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities or an established pattern showing dishonorable failure to pay just debts, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.

15.  Army Regulation 635-200 (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.

DISCUSSION AND CONCLUSIONS:

1.  He contends his Undesirable Discharge should be upgraded to a General Discharge, Under Honorable Conditions due to his undiagnosed condition of PTSD and the fact that he did not get into trouble until he returned from Vietnam.

2.  His records show that he was convicted by two special courts-martial of going AWOL and one special court-martial for wrongful appropriation and damage to a military vehicle.  Two of the four periods he went AWOL were prior to his voluntary service in Vietnam.  

3.  His company commander initiated separation action under Army Regulation 635-212 and noted court-martial convictions, his lack of self-motivation, and negative attitude toward the military as the basis for the action.   

4.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

6.  In view of the foregoing, there is insufficient evidence to grant the 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)                                         AR20100025638





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ABCMR Record of Proceedings (cont)                                         AR20100025638



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