BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025759 


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 undesirable discharge be upgraded to honorable. 

2.  The applicant states:

* there was a discrepancy in the records in regard to signing in and out of the orderly room when he was injured by a bullet wound in Vietnam and sent to the hospital
* He did not go absent without leave (AWOL) nor did he intend to do anything of that nature
* He received the Purple Heart and would like to get treatment for it  

3.  The applicant provides:

* DD Form 214 (Report of Transfer or Discharge)
* Letter, dated 8 October 2010, from his psychologist
* Three character reference letters

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.  He was inducted into the Army of the United States on 8 November 1967.  He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).  

3.  On 8 April 1968, he was convicted by a special court-martial of being AWOL, from 29 February 1968 to 27 March 1968.  He was sentenced to confinement at hard labor for 3 months and to forfeit $37.00 pay for 3 months.  On 8 April 1968, the convening authority approved the sentence but suspended it for 3 months.

4.  He arrived in Vietnam on 29 May 1968 and was wounded in action on 9 July 1968.

5.  Between 27 September 1968 and 8 November 1968, nonjudicial punishment (NJP) was imposed against him on four separate occasions for being derelict in his duty (before going to the hospital he failed to report to the company orderly room to sign out as it was his duty to do so), failing to obey a lawful regulation (curfew violation), possessing marijuana, and disobeying two lawful orders.

6.  Records show he was AWOL from 4-19 September 1968 and 18-19 November 1968.

7.  On 6 November 1968, he underwent a psychiatric evaluation and no significant psychiatric illness was found.  The psychiatrist stated the applicant failed to adjust to military life and "He has always been alone, resents being with numerous others, is hostile toward authority and resents orders.  I feel rehabilitative efforts would be fruitless because this man's behavior has been a lifelong pattern with him.  Therefore, I strongly recommend discharge under the provisions of AR [Army Regulation] 635-212."  

8.  On 25 November 1968, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities with an undesirable discharge.  The unit commander based his recommendation for separation on the applicant's unwillingness to cooperate with his supervisors and contemporaries and because there was no hope of rehabilitation of his attitude or behavior.

9.  After consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

10.  A bar to reenlistment was imposed against him on 23 December 1968.

11.  On 28 December 1968, the separation authority approved the recommendation for separation and directed the applicant be furnished an undesirable discharge.

12.  On 5 January 1969, he was convicted by a special court-martial of five specifications of failing to go to his appointed places of duty, disobeying a lawful command and lawful order, and using disrespectful language.  He was sentenced to perform hard labor for 2 months, to forfeit $46.00 pay for 4 months, and to be reduced to E-1.  On 11 January 1969, the convening authority approved the sentence but suspended that portion of the sentence adjudging hard labor for 2 months.

13.  He departed Vietnam on 12 January 1969.

14.  He was separated with an undesirable discharge on 14 January 1969 under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 1 year and 21 days of creditable active service with 46 days of lost time.

15.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

16.  He provided a letter from his psychologist which states, in pertinent part, the applicant reported symptoms consistent with a diagnosis of Post Traumatic Stress Disorder (PTSD).  The letter states the applicant:

* contends his exposure to trauma in Vietnam altered his personality and his coping styles
* believes his behavior in Vietnam that led to his less than honorable discharge was secondary to the development of PTSD
* opines that he suffered from PTSD soon after his exposure to combat, fostering his behavior
* currently continues to suffer from classic PTSD symptoms  

17.  He also provided three character reference letters from a fellow Soldier, his brother, and two Deacons from his church.  The fellow Soldier at the time in question stated there was a lot of racial prejudice, the applicant was a very decent guy, and he shouldn't have received the type of discharge he got.  His brother attests the war changed him and he was lonely and nervous afterwards.  The Deacons stated the applicant has a wonderful nature, he is loving, kind, and an asset to the church. 

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

19.  Army Regulation 635-200 sets forth the basic authority 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.

20.  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.  He contends his exposure to trauma in Vietnam altered his personality and his coping styles and his behavior in Vietnam was secondary to the development of PTSD.  However, he underwent a psychiatric evaluation on 6 November 1968 and no significant psychiatric illness was found.  The psychiatrist stated he was a loner, he resented being with numerous others, he was hostile toward authority and resented orders, and rehabilitative efforts would be fruitless because his behavior had been a lifelong pattern with him.  No evidence shows he was having mental problems in 1968/1969 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  In addition, he was convicted by his first special court-martial prior to going to Vietnam.      

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

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

5.  His record of service included a bar to reenlistment, four NJPs, two special court-martial convictions, and 46 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service is insufficiently meritorious to warrant an honorable or 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)                                         AR20100025759





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ABCMR Record of Proceedings (cont)                                         AR20100025759



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