IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004271 


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, the widow of a deceased former service member (FSM), requests upgrade of the FSM's undesirable discharge to an honorable discharge.

2.  The applicant states she recently obtained the FSM's record and she and his family were surprised at his behavior when he was in the Army.  She states the FSM:

* had post traumatic stress disorder (PTSD) and he was never treated for it
* reenlisted once and he must have planned to be a good Soldier
* was sent to Vietnam and he was never the same
* was an alcoholic and drug addict when he returned home
* had bad night sweats, he would see things, and he would scream when he was sleeping

3.  The applicant provides:

* the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter, subject:  CONUS Returnee Processing
* an AHBN Form 39a (title unknown)
* the FSM's Undesirable Discharge Certificate
* a notification of charges and special court-martial referral
* 
DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 December 1969
* their Certificate of Marriage
* the FSM's Certificate of Death
* an Application to Correct a Michigan Death Record
* an undated self-authored statement
* a statement from the FSM's sister, dated 9 February 2011

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 FSM enlisted in the Regular Army on 31 May 1966.  He completed training as an engineer parts specialist.  He arrived in Vietnam on
10 August 1967.

3.  On 2 June 1968, the FSM was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 3 June 1968 for a period of 6 years.  He departed Vietnam en route to the United States on 18 July 1968.

4.  The FSM accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on six separate occasions between 4 December 1968 and 4 December 1969 for offenses including:

* Failing to report for guard inspection and guard duty
* Failing to go at the time prescribed to his appointed place of duty
* Failing to report to his appointed place of assignment
* Breaking restriction
* Being absent without leave (AWOL)

5.  The FSM was convicted by a summary court-martial on 24 March 1969 for being AWOL from 3-17 March 1969.

6.  Charges were preferred against the FSM and referred to a special court-martial on 3 November 1969 for the following offenses that occurred on
14 October 1969:

* Two incidents of disobeying lawful orders from a superior noncommissioned officer (NCO)
* Assaulting his superior NCO
* Being disrespectful in language towards his superior NCO
* Breaking restriction

7.  The FSM's record does not contain the final disposition of these charges and specifications.

8.  The FSM's record shows he was counseled on numerous occasions regarding his indebtedness, attitude and actions, NJPs he accepted, missing unit training, and being late for duty.

9.  On 18 November 1969, the FSM was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability, for unfitness.  He acknowledged receipt of the notification.  After consulting with counsel he waived his rights and elected not to submit a statement in his own behalf.  The recommendation for discharge shows that the applicant underwent a psychiatric examination.  The report is not contained in the FSM's available record.

10.  The appropriate authority approved the recommendation for discharge on 18 December 1969 and directed the issuance of an Undesirable Discharge Certificate.

11.  On 24 December 1969, the FSM was discharged accordingly due to frequent involvement in incidences of a discreditable nature with military or civil authorities with an Undesirable Discharge Certificate.  He completed 3 years, 6 months, and 7 days of total active service and received an Undesirable Discharge Certificate.

12.  There is no evidence the FSM appealed to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  The evidence that the applicant submits are documents contained in the FSM's official military record.  In her self-authored statement she repeats the contentions made in her application.  She also states it cannot be true that he was given a competency test as stated in his record.

14.  In the statement from the FSM's sister, she attests to his character and she states that the person she read about in his military record was not her brother.  She states she believes the Vietnam War "screwed his head up."

15.  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 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.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.  The applicant's contentions have been noted.  Her supporting documents have been considered.
2.  There is no evidence in the available record that shows the FSM was suffering from PTSD, alcoholism, or drug addiction while he was in the Army.  The FSM may have intended to be a good Soldier; but his records show he was not.

3.  He was counseled on numerous occasions, he accepted NJP six times, and he was convicted by at least one court-martial due to his unfitness and his frequent involvement of a discreditable nature with military authorities.  The undesirable discharge the FSM received appropriately reflects his overall record of service.

4.  The FSM's record indicates he underwent a psychiatric examination prior to his discharge.  Although the report is not contained in his record it is reasonable to presume that what the Army did in his case was correct.

5.  In view of the foregoing, the applicant's 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)                                         AR20110004271



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ABCMR Record of Proceedings (cont)                                         AR20110004271



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