IN THE CASE OF:	  

		BOARD DATE:	    28 July 2011

		DOCKET NUMBER:  AR20110001414 


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 to an honorable discharge (HD).  

2.  He states he is a combat-wounded veteran with service-connected severe post-traumatic stress disorder rated at 100 percent disabling from 19 August 1997.  He further states all time lost was due to his service in Vietnam when he was 19 years old.  He saw many different things that would not have happened in normal life circumstances.

3.  He provides a letter from the Town of Rindge, NH, Assessing Clerk and a letter from the Disabled American Veterans National Service Office.

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 enlisted in the Regular Army on 17 July 1967 for a period of 3 years.  After completing initial entry training, he was awarded military occupational specialty 36K (Field Wireman).  

3.  His DA Form 20 (Enlisted Qualification Records shows:

* he was credited with service in Vietnam from 6 December 1967 through 7 September 1968 and from 26 November 1969 through 24 July 1970
* in item 38 (Record of Assignments) he was assigned for duty in Vietnam with 

* Battery C, 2d Battalion, 17th Artillery, from 10 December 1967 to 6 September 1968
* Company B, 84th Engineer Battalion (Construction) from December 1969 to 14 March 1970
* Headquarters and Headquarters Company, 299th Engineer Battalion (Construction) from 16 March to 23 July 1970

* in item 38 he was dropped from the rolls of the 299th Engineer Battalion on 18 April 1970 for desertion
* in item 41 (Awards and Decorations) he was awarded the Purple Heart during his first period of service in Vietnam
* in item 44 (Time Lost) he was absent without leave (AWOL) during the following periods:

* 3 to 7 March 1969
* 23 to 26 June 1969
* 18 March to 23 April 1970
* 2 to 5 June 1970

4.  His record includes a letter of appreciation, dated 3 April 1968, from the Commander, Battery C, 2d Battalion, 17th Artillery.  The letter noted his efficient and professional performance of duty during an 11-day phase of the company's operations.

5.  A DD Form 493 (Extract of Military Records of Previous Convictions) shows he was convicted twice by courts-martial.  

   a.  In 1969, a summary court-martial convicted him of being AWOL from 23 to 27 June 1969.  His sentence was reduction to private(PVT)/E-1, hard labor without confinement for 25 days, and restriction.
   
   
   b.  A special court-martial convicted him of:
   
* being AWOL from 18 March to 23 April 1970
* disrespect to a superior commissioned officer
* disobeying an order from a noncommissioned officer (NCO)
* disrespecting an NCO
* willfully disobeying a lawful order on 14 May 1970 by being in an off-limits area

His sentence was forfeiture of $100 per month for 2 months, to perform hard labor for 45 days, and reduction to PVT/E-1.  

6.  On 14 May 1970, his commander initiated proceedings to bar him from reenlistment in the military service.  In support of his recommendation, his commander noted he was pending court-martial, continually showed complete disregard for all military authority, failed to meet military standards in appearance, and required constant supervision and direction in order to accomplish even the most menial task.  On 17 May 1970, the applicant signed a statement indicating he had read and understood the allegations and the action his commander intended to take against him.  He elected not to make a statement.

7.  A Psychiatric Certificate, dated 18 May 1970, shows a psychiatrist found he had an "anti-social personality" and was cleared for any administrative or judicial action deemed appropriate by command, including separation under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability).  The examining psychiatrist stated he believed he had no rehabilitative potential and was in no way psychiatrically ill.  The examining psychiatrist further stated if administrative separation was implemented the decision to eliminate him as unfit or unsuitable should be based on evaluation of his conduct, and not on the psychiatric diagnosis.  

8.  On 14 June 1970, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit without authority from 2 to 5 June 1970.  

9.  On 24 June 1970, his acting commander informed him of the initiation of proceedings to discharge him under the provisions Army Regulation 635-212 for unfitness based on frequent incidents of a discreditable nature with military authorities.  He was advised of his right to present his case before a board of officers, to submit statements on his own behalf, to be represented by counsel, and to waive the aforementioned rights.

10.  On 25 June 1970, the applicant acknowledged he had been advised by counsel of the basis for contemplated action to accomplish his separation for unfitness.  He waived consideration of his case by a board of officers, personal appearance before a board of officers and representation by counsel.  He indicated he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions or an undesirable discharge was issued to him.  He further indicated he understood that as the result of issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws.

11.  On 25 June 1970, he provided the following statement.

I have been in the service for a period of nearly three years.  My [expiration term of service] is in August 1970.  I have now served in Vietnam for a period of eighteen months.  This is my second tour.  I volunteered to come back for a second tour.

I feel it is totally unfair for proceedings under the provisions of [Army Regulation] 635-212 to be initiated at this point in my obligation.  However if it is decided that I should be eliminated, I feel that I deserve to receive, by regulation, no less than a General Discharge Certificate.

In addition to written commendation evidenced in my 201 file, I have been awarded a Purple Heart for a [shrapnel] head wound suffered in combat outside of Qui Nhon.  During that action 50 [percent] of my unit was either killed or wounded.  Furthermore, I feel that the psychiatric report evidences that I fall under paragraph 6b(2) [of Army Regulation] 635-212 and if at all should be eliminated for unsuitability which would entitle me to no less than a General Discharge.

12.  On 1 July 1970, in a memorandum to the brigade commander, his battalion commander recommended approval of his discharge for unfitness.  In support of his recommendation, he stated:

[The applicant] has proven his suitability for military service by previous duty in Vietnam.  I believe he now finds such duty distasteful for reasons of his own.  His purposeful and wanton acts of violence, disrespect, and disregard for authority are well-known to a very large number of [enlisted members] as well as officers and NCO's.  A man guilty of these offenses through his own willful acts, I feel must be judged unfit for service. 

13.  On 6 July 1970, the applicant received a letter of reprimand from his company commander for being in a physical condition such that he could not perform his normal duties.  The commander indicated his condition was "a direct result of some inebriated condition, caused by either drugs or drinking."

14.  On 14 July 1970, the separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212 and directed he receive a General Discharge (GD) Certificate.  The separation authority stated the GD Certificate would be issued in light of his record prior to initiation of the separation action and lack of evidence to substantiate his alleged use of drugs.  

15.  On 23 July 1970, he was discharged according to the separation authority's instructions.  He completed 2 years, 10 months, and 18 days of total active service with 49 days of time lost due to being AWOL.

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  The applicant provides:

   a.  a letter to him from the Assessing Clerk, Rindge, NH, informing him his Veterans Tax Credit would be removed in 2011 unless he could provide evidence showing he received an honorable discharge and
   
   b.  a letter from the Disabled American Veterans National Service Office that shows they are representing the applicant in a claim with the Department of Veterans Affairs for entitlement to service connection for diabetes and a heart condition.

18.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  

   a.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

   b.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an HD or GD was issued as determined by the separation authority based upon the individual's entire record.
   
19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that an HD 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.

   b.  Paragraph 3-7b provides that a GD 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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an individual eligible for benefits.

3.  The applicant has not provided any evidence and the available record does not contain any evidence of irregularities in the discharge process or evidence that his rights were not protected throughout the separation proceeding.

4.  The evidence of record shows he was convicted twice by courts-martial, received NJP, and received a letter of reprimand.  Because of this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of indiscipline also rendered his service insufficiently meritorious to warrant an HD.


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)                                         AR20110001414





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ABCMR Record of Proceedings (cont)                                         AR20110001414



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