IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003137 


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 undesirable discharge.

2.  The applicant states page one of his separation physical examination shows a diagnosis of passive-aggressive personality disorder - severe.  He believes this is what is now known as post traumatic stress disorder (PTSD).  He is currently being treated for PTSD and his counselor believes he has experienced this all these years.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* his Standard Form (SF) 88 (Report of Medical Examination)
* one page from his DA Form 20 (Enlisted Qualification Record)
* pages 1-5 of 20 of an Adult Needs and Strengths Assessment (ANSA) from Hamilton Center, Inc.

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 27 February 1965 for a period of 3 years.  He completed training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).

3.  On 28 August 1965, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 18 to 19 August 1965.

4.  His DA Form 20 shows he was assigned to:

* 2nd Battalion, 8th Cavalry in Vietnam from 21 September to 21 December 1965
* Medical Hold Detachment, Ryuku Islands, from 22 December 1965 to     15 June 1966
* 2nd Battalion, 8th Cavalry in Vietnam from 16 June to 6 August 1966

5.  He accepted NJP on:

* 14 March 1966 for being absent from bed check
* 18 March 1966 for failing to report to his appointed place of duty and being absent from bed check
* 21 March 1966 for failing to report to his appointed place of duty
* 15 April 1966 for being absent from his appointed place of duty 
* 23 April 1966 for being absent from his appointed place of duty
* 27 April 1966 for breaking restriction
* 19 November 1966 for being absent from his appointed place of duty
* 9 December 1966 for being AWOL from 1 - 9 December 1966

6.  On 3 June 1966, before a special court-martial, and contrary to his plea, he was found guilty of:

* stealing by means of force and violence $8.00 from another person
* being AWOL from on or about 20 May 1966 to on or about 23 May 1966

7.  On 17 March 1967, before a special court-martial, he pled guilty and he was found guilty of being AWOL from on or about 26 January to on or about 1 March 1967.

8.  On 20 October 1967, before a special court-martial, he pled guilty and he was found guilty of:

* being AWOL from on or about 5 June to on or about 4 July 1967
* being AWOL from on or about 4 August to on or about 19 September 1967

9.  On 27 March 1968, before a special court-martial, he pled guilty and he was found guilty of being AWOL from on or about 27 October to on or about 6 March 1968.

10.  On 3 May 1969, before a special court-martial, he pled guilty and he was found guilty of:

* being AWOL from on or about 11 November 1968 to on or about 
29 January 1969
* being AWOL from on or about 3 February to on or about 8 April 1969

11.  On 3 June 1969, he was given a psychiatric evaluation by a major, Medical Corps.  The examiner diagnosed him with passive-aggressive personality disorder, severe.  The examiner stated the disorder was not medically disqualifying but should be considered in his further training or administrative disposition.

12.  On 8 July 1969, his commander notified him that he was being recommended for separation from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The commander advised the applicant of his right to present his case before a board of officers, submit any statements in his behalf, and to be represented by military counsel appointed by the convening authority, military counsel of his own choice, provided the requested counsel is reasonably available or civilian counsel at his own expense.

13.  On 11 July 1969, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.
14.  The applicant acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

15.  On 24 July 1969, his commander recommended the applicant be discharged before the expiration of his term of service under the provisions of Army Regulation 635-212.  Discharge was recommended because of repeated and lengthy periods of AWOL, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which renders him a complete loss to the service.

16.  On 5 August 1969, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 and directed the applicant be furnished an Undesirable Discharge Certificate.

17.  On 14 August 1969, he was discharged for unfitness under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.  He completed 2 years and 28 days of total active service that was characterized as under conditions other than honorable.  He had 316 days of time lost and 453 days time lost subsequent to his normal expiration of term of service.

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

19.  The ANSA from Hamilton Center, Inc was completed on 17 November 2009 by a licensed certified social worker (LCSW).  The social worker indicated a diagnosis of PTSD.  His SF 88 for his separation examination contains the note "passive, aggressive personality disorder, severe."

20.  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 6a of the regulation 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.

21.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) currently 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.

22.  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.  There is no substantive evidence that the diagnosis of passive-aggressive personality disorder in 1969 and the diagnosis of PTSD over 30 years later are related in any way.

2.  It appears that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  He accepted NJP on nine occasions and he was convicted by five special courts-martial.  He had 316 days time lost.  This clearly shows his service to be unsatisfactory.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110003137



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ABCMR Record of Proceedings (cont)                                         AR20110003137



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