IN THE CASE OF:	  

		BOARD DATE:	    16 June 2011

		DOCKET NUMBER:  AR20100029229 


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 under other than honorable conditions discharge to honorable.

2.  The applicant states he did not think it mattered at the time.  After he returned from Vietnam, he believes he had post-traumatic stress disorder (PTSD) and this has affected him for years.  He could not carry out his orders from those who did not go to Vietnam and they were always on his case.  He was absent without leave (AWOL) so he would be discharged.  He has now turned his life around.

3.  The applicant provides no additional evidence.

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 show he enlisted in the Regular Army for 3 years on 25 July 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during this period of military service was private first class/E-3.

3.  His records show he served in Vietnam from 28 February 1970 to 18 September 1970.  He was awarded the Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.

4.  Upon completion of his Vietnam tour of duty, he was assigned to the 5th Battalion, 6th Infantry, Fort Hood, TX.

5.  On 6 April 1971, he was convicted by a summary court-martial of one specification of being AWOL from 5 January to 3 March 1971.  The court sentenced him to confinement at hard labor for 30 days.  The convening authority approved his sentence on the same date.

6.  On 31 August 1971, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  He recommended an Undesirable Discharge Certificate.

7.  On 31 August 1971, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also acknowledged he under he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf.

8.  On 3 September 1971, his immediate commander initiated separation action against him under Army Regulation 635-212 for unfitness.  The immediate commander recommended an Undesirable Discharge Certificate.  He indicated the applicant had been a constant source of trouble in the unit.  He held several different positions during this period and in each position he displayed a lack of cooperation.  He had become a disruptive influence to good order and discipline in the unit.  He was counseled on numerous occasions but failed to respond to any rehabilitative efforts.  His discharge was in the best interest of the Army and the unit.

9.  On 7 September 1971, he underwent a separation physical.  He indicated he was in good health and the military physician found him fully qualified for separation.

10.  On 9 September 1971, he was convicted by a special court-martial of two specifications of being AWOL on 25 August 1971 and from 3 to 25 August 1971. 
The court sentenced him to a forfeiture of $127.00 pay, a reduction to the lowest enlisted grade, and confinement at hard labor for 30 days.   The convening authority approved a reduced sentence of a suspended confinement on the same date.

11.  On 9 September 1971, his intermediate commander recommended approval of the separation with the issuance of an Undesirable Discharge Certificate.

12.  On 16 September 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate.  Accordingly, on 24 September 1971, the applicant was discharged.

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 1 year, 10 months, and 14 days of creditable active military service and he had 106 days of lost time.

14.  On 31 October 1973, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

17.  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.  The evidence of record shows the applicant displayed habits and traits of character manifested by frequent incidents of a discreditable nature with military authorities as confirmed by his continuous AWOL and court-martial convictions.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His service in Vietnam is acknowledged.  However, there is no evidence that he suffered from PTSD or any other mental condition as a result of this service at the time or that his Vietnam service caused him to be AWOL.  Additionally, there is no evidence he encountered any more challenges than thousands of other Soldiers who served honorably and successfully completed their terms of service.

4.  Based on his record of indiscipline, the applicant's 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.


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)                                         AR20100029229



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ABCMR Record of Proceedings (cont)                                         AR20100029229



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