IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029658 


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 undesirable discharge be upgraded.

2.  The applicant states when he was discharged the officials told him his discharge would change upon obtaining the records from St. Louis.  He was never told why his discharge was under other than honorable conditions.  He further contends his request should be considered because he is now suffering from post traumatic stress disorder (PTSD).

3.  The applicant provides no additional documentation.

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.  On 27 August 1968, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

3.  On 13 February 1969, the applicant departed Fort Benning, Georgia, for duty in the Republic of Vietnam (RVN).

4.  On 24 March 1969, the applicant was assigned to the 7th Battalion, 13th Artillery Regiment, located in the RVN.

5.  The applicant accepted the following nonjudicial punishments:

* 17 June 1969: disobeyed a lawful order by stopping in an "off Limits" area
* 3 October 1969: disobeyed a lawful order by stopping in an "off Limits" area and appeared in an improper uniform
* 16 October 1969: broke restriction
* 3 December 1969: absent without authority (less than 1 day) and failed to go to his appointed place of duty at the prescribed time
* 22 December 1969: disobeyed a lawful command

6.  On 17 October 1969, the applicant was notified of his rehabilitative transfer from Battery B to Battery C, within the same battalion.  He was informed that further misconduct or unsatisfactory performance on his part would serve as a basis for the initiation of elimination proceedings.  The applicant acknowledged receipt on 19 October 1969.

7.  A Psychiatric Certificate, dated 13 December 1969, stated the applicant was evaluated and cleared for any administrative or judicial action deemed appropriate by his chain of command.  A brief clinical abstract indicated the applicant was of dull/normal intelligence and he exhibited low stress tolerance.  He had a mild character and behavior disorder manifested by petty rule infractions and authority resentment.  Disciplinary action, counseling and rehabilitative transfer had not been effective in changing his behavior.  He presented no significant psychiatric illness and he was cleared for separation.

8.  On 16 December 1969, the applicant's commander recommended that he be separated due to unfitness under the provisions of Army Regulation 635-212.  The commander stated the applicant had repeatedly failed to comply with military regulations, he had total disregard and disrespect for authority, and he made no attempt to change or improve his attitude and conduct.

9.  On 24 December 1969, the applicant consulted with counsel and requested consideration of his case by a board of officers; requested representation by counsel; and did not elect to submit a statement in his own behalf.

10.  On 10 February 1970, a board of officers convened and determined that the applicant was undesirable for retention in the military because of repeated commission of petty offenses.  The board further determined that rehabilitation was not deemed possible.  The board recommended that the applicant be discharged due to unfitness and the issuance of an Undesirable Discharge Certificate.

11.  On 23 February 1970, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, due to unfitness with an undesirable discharge.  

12.  On 5 March 1970, the applicant was discharged under conditions other than honorable.  He had completed 1 year, 6 months, and 8 days of creditable active duty service.  He was assigned separation program number (SPN) 28B.

13.  On 23 March 1973, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that he had been properly discharged and denied his request.

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel 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.

15.  Army Regulation 635-200 sets forth the basic authority 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.

16.  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 applicant contends his undesirable discharge should be upgraded because he was told that it would be and because he is now suffering from PTSD.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

5.  The applicant has not provided any documentary evidence or offered any convincing argument in support of his contention that he is now suffering from PTSD, or that PTSD was the direct cause for his repeated misconduct.

6.  In view of the above, there is no valid basis warranting an upgrade of the applicant's discharge.  Therefore, his request should be denied.

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)                                         AR20100029658



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ABCMR Record of Proceedings (cont)                                         AR20100029658



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