BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110003372 


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 he was suffering from post-traumatic stress disorder after leaving Vietnam and he had to have shock treatments at Winter Haven Hospital after his discharge.

3.  The applicant provides no additional evidence with his application.

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 was inducted into the Army of the United States on 7 December 1967.  He completed basic training at Fort Benning, Georgia, and advanced individual training as a light weapons infantryman at Fort Gordon, Georgia, before being transferred to Vietnam on 12 June 1968.  On 6 July 1969, he was honorably discharged for the purpose of immediate enlistment.  On 7 July 1969, he enlisted in the Regular Army for a period of 3 years with a waiver for lost time.

3.  He was promoted to pay grade E-5 on 6 September 1969.  He departed Vietnam on 9 December 1969 for assignment to Fort Benning.

4.  On 21 July 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 3 to 13 April 1970 and 16 April to 12 July 1970.  He was sentenced to confinement at hard labor for 30 days and reduction to pay grade E-1.

5.  The applicant was AWOL again from 8 September 1970 to 7 January 1971 and 14 January to 15 March 1971.

6.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Veterans Administration on 14 January 1983.  However, his records do contain a duly-authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged under other than honorable conditions on 19 March 1971 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability due to apathy, defective attitude, and inability to expend effort constructively.  He completed 9 months and 15 days of active service during his current enlistment for a total of 2 years, 3 months, and 16 days.  He had 328 days of lost time due to AWOL and confinement.

7.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members displaying traits of apathy, defective attitudes, and an inability to expend effort constructively were subject to separation for unsuitability.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

10.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  The applicant's contentions and overall record of service have been considered.  He provided no evidence to show he was suffering from any mental disorder.  In addition, as the evidence shows he was given a waiver for lost time when he enlisted on 7 July 1969 it appears his misconduct started well before he arrived in Vietnam.  Given the repeated nature of his misconduct, his service is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply did not rise to the level of 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)                                         AR20110003372



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ABCMR Record of Proceedings (cont)                                         AR20110003372



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