IN THE CASE OF:	  

		BOARD DATE:	    31 May 2011

		DOCKET NUMBER:  AR20100027571 


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, an upgrade of his undesirable discharge (UD) to an honorable discharge.

2.  He states he thinks his discharge was too harsh of a decision according to his DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)).  He served his country with honor and dignity and he loves his country.  He admits that he had problems when he completed his tours and returned back state-side.  After returning, he began to drink and smoke excessively.  He also began having episodes of Vietnam flashbacks.  At the time he didn't know what was going on with him, but later he found out that he had post-traumatic stress disorder (PTSD).  

3.  He provides:

* DA Form 20 (Enlisted Qualification Record)
* Seven DA Forms 2627-1
* 1964 and 1967 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* 2007 and 2008 Medical Progress Notes
* Two 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.  The applicant's military records show he was inducted into the Army in pay grade E-1 on 20 November 1962, for 2 years.  He completed training and was awarded military occupational specialty 630 (Automobile Mechanic Helper).  He served in Germany from 18 April 1963 through 8 November 1964.  

3.  On 3 March 1964, he accepted non-judicial punishment (NJP) under Article 15, UCMJ, for being absent without leave (AWOL) for 1 day.

4.  He was honorably discharged in pay grade E-3 on 9 November 1964.  

5.  He enlisted in the Regular Army (RA) on 10 November 1964 for 3 years.  

6.  He accepted NJP under Article 15, UCMJ, on:

* 17 June 1965 - for failing to repair
* 24 June 1965 - for being apprehended while driving in excess of the posted speed limit

7.  He served in Vietnam from 17 August 1965 through 16 August 1966.   

8.  He again accepted NJP under Article 15, UCMJ, on:

* 7 November 1966 - for being AWOL for 1 day
* 24 May 1967 - for failing to go to his appointed place of duty
* 5 September 1967 - for breaking restriction
* 3 October 196 - for failing to go to his appointed place of duty

9.  He was reduced to pay grade E-1 on 23 October 1967.

10.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain and he submitted a DD Form 214 which shows he was discharged from active duty in pay grade E-1 on 27 October 1967, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for an Established Pattern of Shirking.  His service was characterized as under conditions other than honorable and he was issued a UD Certificate.  He was credited with completion of 2 years, 11 months, and 18 days of net active service during this period and 1 year, 11 months, and 20 days other service.  

11.  He also provided his medical progress notes which show, in effect, he was diagnosed with PTSD in 2007 and is receiving treatment through the Department of Veterans Affairs (VA).  It was noted he had shown no rated disabilities and his primary eligibility was listed in the computer as non-service connected, VA pension.  

12.  He further provided two character reference letters attesting to his ultimate sacrifice by serving in Vietnam, being a leader in his community, and being an example to others serving this country.  

13.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 who are found to be unfit or unsuitable for further military service.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  A UD was normally considered appropriate for individuals separated by reason of unfitness.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally meets 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.

16.  Army Regulation 635-200 also states 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.  The applicant's contentions have been noted and found not to have merit.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 26 November 1971 under the provisions of Army Regulation 635-212, for an Established Pattern of Shirking.

2.  In addition, his record of misconduct started before he arrived in Vietnam.

3.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his UD.  His military records also contain no matter upon which an upgrade should be granted.  It appears his failure to meet acceptable standards for retention diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

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)                                         AR20100027571





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ABCMR Record of Proceedings (cont)                                         AR20100027571



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