IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100026269 


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 to a general discharge.

2.  The applicant states:

* he had an excellent military record until he went to Vietnam
* going to Vietnam exposed him to drinking which caused his discharge
* before he was discharged he had the option to go to Alcoholics Anonymous
* he was told he would receive a general discharge
* his service in Vietnam has caused him to develop conditions where he has nightmares, hears voices, and he has attempted to harm himself
* he is trying to obtain treatment from the Department of Veterans Affairs (DVA) for these disabilities and presumptive of Agent Orange, but his discharge is preventing him from receiving treatment

3.  The applicant provides his DD Form 214 (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.  The applicant was inducted into the Army of the United States on 6 December 1967.  He completed training and he was awarded military occupational specialty 94B (cook).

3.  On 17 July 1968, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 3 July 1968 to 16 July 1968.

4.  He arrived in Vietnam on 22 September 1968. 

5.  Between 8 December 1968 and 28 December 1968, NJP was imposed against him on two occasions for failing to obey a lawful order and for failing to go at the time prescribed to his appointed place of duty. 

6.  He departed Vietnam on 6 March 1969.

7.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.

8.  His discharge orders and DD Form 214 show he was discharged on 10 March 1969 with an undesirable discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) under separation program number (SPN) 46A for unsuitability, apathy, defective attitudes, and inability to expend effort constructively.  He completed 1 year, 2 months, and 23 days of total active service with 12 days of time lost.

9.  There is no evidence that shows he was diagnosed with alcohol abuse or dependency prior to his discharge.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.


11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

12.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of 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.  

DISCUSSION AND CONCLUSIONS:

1.  Although he contends he had an excellent record until he went to Vietnam, he received his first NJP prior to going to Vietnam.

2.  His contention that going to Vietnam exposed him to drinking and caused him to receive an undesirable discharge was noted.  However, there is no evidence that shows he was diagnosed with alcohol abuse or dependency prior to his discharge.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the DVA.

4.  His contention that he was told he would receive a general discharge was noted.  However, in the absence of evidence to the contrary, it must be presumed his separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.


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)                                         AR20100026269



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ABCMR Record of Proceedings (cont)                                         AR20100026269



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