IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110006409 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that his misconduct was exacerbated by post-traumatic stress disorder which began after returning from Vietnam.  Prior to serving in Vietnam he was an exemplary Soldier; therefore, he believes he deserves an honorable discharge.

3.  The applicant provides a one-page statement explaining his application, a copy of item 38 of his DA Form 20 (Enlisted Qualification Record), and a letter from a veterans’ service officer.

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 31 August 1965, the applicant enlisted in the Regular Army for a period of 3 years.  He completed basic training and advanced individual training as an administrative specialist at Fort Dix, New Jersey.  On 7 May 1966, nonjudicial punishment (NJP) was imposed against him for missing bed check. 

3.  On or about 8 May 1966, he was transferred to Fort Benning, Georgia to undergo airborne training.  However, he was medically disqualified for airborne training due to having a hernia operation.

4.  On 10 August 1966, he was transferred to Vietnam and initially he was assigned to the 45th Engineer Group for duty as a records specialist.  On
10 November 1966, he was assigned to Headquarters and Headquarters Company, 39th Engineer Battalion for duty as a mail clerk. 

5.  On 9 August 1967, he departed Vietnam and was transferred to Darmstadt, Germany for assignment to a Signal Company.

6.  NJP was imposed against him on:

* 16 October 1967, for being absent from his place of duty
* 4 November 1967, for being absent from his place of duty
* 27 November 1967, for two specifications of failure to go to his place of duty

7.  On 29 November 1967, the applicant's commander initiated a recommendation to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record, his habitual record of misconduct, poor attitude, poor appearance, and failure to respond to repeated counseling.  The applicant acknowledged he had been informed of the basis for the commander’s recommendation and elected not to make a statement in his own behalf.  The appropriate authority approved the bar on 15 December 1967.

8.  On 15 December 1967, the applicant underwent a psychiatric examination and was diagnosed as having a passive-aggressive personality.  The examining official opined that there was no evidence of psychiatric disease, defect, or 

derangement and little or no motivation for continuation in the service.  He cleared the applicant for administrative separation.   

9.  NJP was imposed against him on:

* 18 December 1967, for driving a military vehicle without a valid military driver’s license and running it off the road
* 26 December 1967, for missing bed check and being absent from his unit from 24 to 25 December 1967

10.  On 30 January 1968, the applicant’s commander initiated a recommendation to separate him from the service for unfitness under the provisions of Army Regulation 635-212 due to habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.

11.  On 11 January 1968, after consulting with counsel, the applicant waived all of his rights and declined to submit a statement in his own behalf.

12.  On 15 February 1968, the battalion commander informed officials at the Office of the Adjutant's General that since being notified of his pending separation action, the applicant had been absent from his place of duty approximately eight times and he indicated that he would employ any means necessary to be discharged.  The battalion commander also stated that the applicant’s discreditable appearance, attitude, and military bearing were among the worst he had ever seen.

13.  Although not explained in the available records, on 21 February 1968, the appropriate authority approved the applicant for discharge for unsuitability under the provisions of Army Regulation 635-200, paragraph 6b(2) and directed that he be furnished a General Discharge Certificate.

14.  Accordingly, on 2 March 1968, he was discharged under honorable conditions under the provisions of Army Regulation 635-212 due to unsuitability.  He had served 2 years, 6 months and 2 days of active service and his DD Form 214 issued at the time of his discharge shows that he was awarded the National Defense Service Medal and the Vietnam Service Medal.    

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


16.  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, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  

17.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations in effect at the time with no procedural errors that would have jeopardized his rights.

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

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.  

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)                                         AR20110006409



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ABCMR Record of Proceedings (cont)                                         AR20110006409



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