IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100027620 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he went absent without leave (AWOL) because he suffered from post-traumatic stress disorder (PTSD) that had not been diagnosed.  He goes on to state that his brother was killed in Vietnam while he was stationed in Vietnam and he could not save his brother.

3.  The applicant provides:

* a copy of his DD Form 214 (Report of Separation from Active Duty)
* five newspaper articles
* five third-party statements
* Department of Veterans Affairs (VA) Progress Notes

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 records, though somewhat incomplete, show that he enlisted in the Regular Army on 1 November 1966 for a period of 3 years.  He was transferred to Fort Dix, New Jersey to undergo his basic training.

3.  On 25 January 1967, nonjudicial punishment (NJP) was imposed against him for being AWOL from 22 January to 23 January 1967.

4.  He completed his basic training and was transferred to Fort Jackson, South Carolina to undergo advanced individual training (AIT).  He was recycled through three different courses of training at Fort Jackson.

5.  On 11 March 1967, NJP was imposed against him for being disrespectful in language towards a superior commissioned officer.

6.  He completed AIT and he was transferred to Vietnam on 26 May 1967 for duty as a light weapons infantryman.

7.  The applicant’s brother was in Vietnam serving as marine and was killed in action on or about 2 June 1967.  The applicant departed Vietnam in July 1967 for assignment to Fort Dix.

8.  On 2 August 1967, NJP was imposed against him for failure to report to guard duty.

9.  On 19 September 1967, NJP was imposed against him for being AWOL from 3 September to 19 September 1967.

10.  On 25 July 1968, he was convicted by a special court-martial of being AWOL from 10 October to 28 October 1967 and from 28 October 1967 to 1 July 1968.  He was sentenced to confinement at hard labor for 1 month and a forfeiture of pay.

11.  On 13 February 1969, he underwent a mental status evaluation and he was diagnosed as having an anti-social personality, chronic, severe.  

12.  On 24 February 1969, he was convicted by a special court-martial of being AWOL from 17 August 1968 to 22 January 1969.  He was sentenced to confinement at hard labor for 6 months, and a forfeiture of pay.

13.  On 10 March 1969, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-212, for unfitness based on frequent involvement in incidents of a discreditable nature with civil and military authorities.  After consulting with counsel, he waived all of his rights and elected not to submit a statement in his own behalf.

14.  On 24 March 1969, the appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate. 

15.  Accordingly, on 4 April 1969, he was discharged under the provisions of Army Regulation 635-212 due to frequent involvement in incidents of a discreditable nature with civil and military authorities with an undesirable discharge.  He had served 1 year, 2 months, and 7 days of total active service and had 453 days of lost time due to being AWOL and in confinement.

16.  On 12 February 1976, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and contended that he was willing to go back into the Army to prove himself if he had to.

17.  On 18 February 1977, the ADRB determined that while the applicant was properly discharged his discharge was inequitable under the circumstances and voted to upgrade his discharge to a general under honorable conditions based on his diagnosed personality disorder.  Accordingly, he was issued a new DD Form 214.

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, in pertinent part, 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.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.  



DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actions of the ADRB, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted.  However, the offenses committed by the applicant were numerous and serious, they began before his brother was killed, and his overall record of service is too undistinguished for equitable relief to be appropriate.  His service simply does not rise to the level of a fully honorable discharge.

4.  The applicant has failed to submit evidence that would support an upgrade of his discharge to fully honorable.

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)                                         AR20100027620



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ABCMR Record of Proceedings (cont)                                         AR20100027620



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