BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100026652 


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 an upgrade of his undesirable discharge.

2.  The applicant states he served his country honorably as an infantryman in Vietnam for 12 months and was awarded the Combat Infantryman Badge (CIB).  He did not get into any trouble until he returned to the United States from Vietnam.  He was having marital problems, most of which he feels was attributed to his post-traumatic stress disorder (PTSD).  He requests an upgrade so he can receive treatment/help for his PTSD from a Department of Veterans Affairs (VA) medical center.

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim) and 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.  The applicant enlisted in the Regular Army on 21 December 1966.  He was awarded the military occupational specialty of light weapons infantryman.  His record shows he served in Republic of Vietnam from 21 May 1967 through on or about 16 May 1968 and was awarded the CIB during this period of service.

3.  On 1 September 1967, he was convicted by a special court-martial of being derelict in the performance of his duties in that he negligently failed to observe to the front of the defensive perimeter while being on post as a sentinel in the Republic of Vietnam.

4.  He was convicted by a special court-martial on 6 May 1969 of being absent without proper authority during the period 26 March to 24 April 1969.

5.  On 25 May 1969, his commander notified him of his intent to recommend his discharge for unfitness and of his rights in conjunction with that recommendation.

6.  On 27 May 1969, he was evaluated at the Mental Hygiene Consultation Service at Fort Hood, TX.  The evaluation revealed no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  The findings of the evaluation were that the applicant basically had an immature personality with no concern for the consequences of his actions.  It was strongly recommended that the applicant be administratively separated.

7.  He was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He acknowledged he understood he might encounter substantial prejudice in civilian life in the event that a general discharge under honorable conditions were issued to him.  He further acknowledged he understood if an undesirable discharge under conditions other than honorable was issued to him that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant then waived his rights.

8.  On 5 June 1969, the separation authority approved the applicant's elimination from the service.

9.  On 16 June 1969, he was given an undesirable discharge with his service characterized as under other than honorable conditions under the provisions of Army Regulation 635-212.  His DD Form 214 shows he completed a total of 2 years, 3 months, and 14 days of active military service with 73 days of lost time.

10.  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.

11.  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 6 provided that 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.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.

13.  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.  There is no evidence in the applicant's record and he has not submitted any substantive evidence showing he had been diagnosed with PTSD or any other mental condition prior to or since his discharge.  He provided no explanation as to how his alleged PTSD excuses or justifies his behavior.

2.  He was discharged under the provisions of Army Regulation 635-212 for unfitness.  His records show he accrued a total of 73 days of lost time.  He was convicted by court-martial for negligently failing to observe the defensive perimeter while being on post as a sentinel in the Republic of Vietnam and he was convicted by court-martial of being absent without proper authority.

3.  Based on the applicant's misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The ABCMR does not grant requests for discharge upgrades 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.

6.  In view of the foregoing, 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 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)                                         AR20100026652



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ABCMR Record of Proceedings (cont)                                         AR20100026652



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