IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100028510 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states while serving in Korea in 1962, he was recruited to drive for an intelligence officer on a classified mission in Laos.  He neither knew the name of the officer nor the purpose of the mission.  The applicant adds that he was then absorbed into a group of about 31 South Vietnamese Army and U.S. military advisors.  A subsequent firefight resulted in the death of everyone except him.  He was struck by shrapnel, knocked unconscious, and captured.  He was imprisoned in a small bamboo cage for about 2 months but he escaped and returned to duty.  He also states when he returned to duty he was a changed man.  He suffered from post-traumatic stress disorder (PTSD) from his experience in Laos.  This caused his problems and bad choices which ultimately led to his discharge.  He only wants his discharge upgraded so he may be buried at a National cemetery.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Letters from and to the National Personnel Records Center (NPRC)
* Letters to and from various Members of Congress
* 
Letters from various legal interns representing him with the Department of Veterans Affairs (VA) and a letter to the VA

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  

3.  The applicant was previously advised on two separate occasions that due to lack of sufficient records, the Board could not make a decision on his application. Nevertheless, the Director of the ABCMR has made the decision to consider his case based upon the documents provided by the applicant.

4.  The applicant's DD Form 214 shows he enlisted in the Regular Army for a period of 3 years on 20 March 1961 in the rank/grade of private (PVT)/E-1 and that he was trained in military occupational specialty 140.00 (Field Artillery Basic). 

5.  His DD Form 214 further shows at the time of his discharge, he was assigned to the Casual Detachment, U.S. Army Engineer Center, 2nd Regiment, Fort Belvoir, VA.  

6.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his DD Form 214 shows he 

was discharged on 29 August 1963 in accordance with Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, in pay grade E-1 with an under other than honorable conditions character of service.  This form also shows:

* He was issued a DD Form 258A (Undesirable Discharge Certificate)
* He completed 1 year, 10 months, and 2 days of creditable active service, of which 1 year, 2 months, and 14 days was overseas service in the U.S. Army Pacific 
* Item 38 (Remarks) of the DD Form 214 shows he had 220 days of time lost under Title 10, U.S. Code, section 972, from 7 January to 25 March 1963 and 9 April to 28 August 1963

7.  Item 11c (Reason and Authority) of the applicant's DD Form 214 contains the entry SPN (Separation Program Number) 28B.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that the SPN code 28B was authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason: "Unfitness - Frequent involvement in incidents of a discreditable nature with civil or military authorities."

8.  He provides:

	a.  various letters to and from NPRC inquiring about his service records; 

	b.  various letters to and from Members of Congress regarding his service records; 

	c.  various letters from multiple legal interns, School of Law, Veterans Law Clinic, University of Detroit, who represented him over the years in his attempt to find his records and/or filed a VA claim; and 

	d.  letters to the VA regarding his claim for PTSD disability compensation.

9.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual 

perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

11.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, 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.  

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the facts and circumstances concerning the events that led to his discharge from the Army.  However, his record contains a copy of his DD Form 214 which shows he was discharged on 29 August 1963 under the provisions of Army Regulation 635-208 by reason of unfitness with a character of service as under other than honorable conditions.

2.  His available records reveal two instances of time lost, 7 January to 25 March 1963 and 9 April to 28 August 1963, totaling 220 days.  However, there is no evidence in the available records and he did not provide substantiating evidence that shows he was held captive in Laos or that he suffered from PTSD or that his alleged PTSD led to his misconduct.

3.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would tend to jeopardize his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

4.  Based on the available records, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This 

misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his 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)                                         AR20100028510



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ABCMR Record of Proceedings (cont)                                         AR20100028510



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