IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110000748 


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 upgrade of his discharge.

2.  The applicant states he was having emotional problems after returning from Vietnam and was absent without leave (AWOL) after the Army psychiatrists couldn't help him.  Not much was known about post traumatic stress disorder (PTSD) at that time.  He would never have gone AWOL except that he was in a traumatized state of mind. 

3.  The applicant provides copies of the DD Form 214 (Report of Transfer or Discharge) for his first enlistment, a Certificate of Military Service showing an under other than honorable conditions discharge, and some of his Department of Veterans Affairs (VA) rating and treatment records.

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 6 May 1966, the applicant enlisted in the Regular Army at the age of 21 years and 9 months.  He completed training and was awarded military occupational specialty 73C (Pay Disbursement Specialist).   

3.  He was stationed at Fort Leonard Wood, Missouri where a 21 January 1967 summary court-martial convicted him of assaulting two fellow privates and being drunk and disorderly in quarters.  He was reduced to pay grade E-1.  He remained at Fort Leonard Wood, until 1 September 1967 when he was reassigned to Vietnam.

4.  In Vietnam, the applicant served in the 10th Finance Section from 15 October 1967 to 8 October 1968.

5.  He returned to the United States and reported for duty at Oakland, California, on 13 November 1968.  The applicant reenlisted on 11 December 1968 for         6 years.  

6.  The applicant was convicted by a special court-martial (SPCM) for being AWOL from 1 January 1969 through 10 February 1969, and he was reduced to pay grade E-3.  

7.  He was transferred to Fort Knox, Kentucky where he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 20 September 1969 for absence from his place of duty (AAPD)
* 2 December 1969 for dereliction of duty
* 4 February for AWOL 2 through 4 February 1970
* 23 April 1970 for AAPD

8.  On 17 July 1970, he was convicted by an SPCM for being AWOL from         30 April through 8 May 1970, 22 through 25 May 1970, and 7 through 24 June 1970, and he was  reduced to pay grade E-1.

9.  On 23 July 1970, the applicant was advised of his contemplated separation for unfitness under the provisions of Army Regulation 635-212.  He consulted with counsel, waived appearance before and consideration by a board of officers, representation by counsel and indicated that statements were not being submitted in his own behalf.  The applicant also indicated that he understood that 


he could expect to encounter substantial prejudice in civilian life as a result of a general discharge and that, if an undesirable discharge were issued, he might be ineligible for many or all veteran's benefits under state or local law and that he could expect to encounter substantial prejudice in civilian life.

10.  A psychiatric evaluation found the applicant mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  There was no evidence of any underlying, previously unrecognized, or mentally disqualifying emotional illness.  The applicant was cleared for administrative action deemed appropriate by the command.  A 7 August 1970 medical examination found he met retention standards.

11.  The intermediate commander recommended an undesirable discharge and the separation authority so directed.

12.  On 25 August 1970, the applicant was separated under other than honorable conditions.  Neither the DD Form 214 nor the Undesirable Discharge Certificate is currently available.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  On 28 January 1982, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

15.  The documents that the applicant submitted with this application point out that, although he was barred from other VA benefits, he had been made eligible for health care and related benefits by a 1977 law.  A diagnosis of PTSD was confirmed in 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was having emotional problems after returning from Vietnam and was AWOL after the Army psychiatrists couldn't help him.  Not much was known about PTSD at that time.  He would never have gone AWOL except that he was in a traumatized state of mind. 


2.  While the term PTSD may not have been in use in 1970, an emotional reaction to war is not a new mental health concept.  It was well known and it had been for centuries.  The July 1970 psychiatric examination shows that the applicant displayed no symptoms of emotional illness prior to his discharge.  

3.  The applicant's misconduct started well before he went to Vietnam.  He ultimately had three courts-martial and four NJPs which clearly constitutes frequent incidents of a discreditable nature.

4.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

6.  In view of the foregoing there is no basis for granting the requested relief.

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)                                         AR20110000748





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ABCMR Record of Proceedings (cont)                                         AR20110000748



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