BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110011501 


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, in effect, that his General Discharge (GD), under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP), be affirmed.   

2.  He states he volunteered to defend his country and he fought courageously and honorably.  During his service in Vietnam, he stepped on a punji stick, contracted malaria, and was exposed to Agent Orange which has caused severe medical problems for him and his children.  His service record before and during Vietnam was excellent.  

3.  He also states that when he returned from Vietnam, he started to show signs of Post-Traumatic Stress Disorder (PTSD).  On each occasion that he went absent without leave (AWOL), he was found at his parents' house.  After serving nine months in military confinement, he was given additional training and was shipped to Germany. 

4.  His battalion commander understood the graveness of his mental condition and ordered him to stay in his room for the remainder of his enlistment.  He returned home on emergency leave due to his father’s illness.  He could not stand the idea of returning to Germany, so he went AWOL.  He was apprehended by military authorities and was given an Under Other Than Honorable Conditions (UOTHC) discharge.

5.  His severe PTSD affected his ability to make wise and rational decisions.  He has since found religion and raised two children with his wife.  His wife was culminating her case for his claim of PTSD and unjust treatment when she unexpectedly died in 2009.  He has since battled multiple cancers and lives with his daughter in Fort Collins, Colorado.  He believes he deserves to be honored for his service, and should not be held accountable for the mistakes he made because of his mental illness. 

6.  He provides:

* A copy of his DA Form 201 (Military Personnel Records Jacket (MPRJ))
* Two DD Forms 214 (Report of Separation from Active Duty)
* His military medical records
* Department of Veterans Affairs (VA) documents
* A divorce decree 

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.  After having had prior service in the Army National Guard, he enlisted in the Regular Army on 13 July 1965.  After the completion of training, he served in military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  His DA Form 20 (Enlisted Qualification Record) shows the following entries:

* Item 31 (Foreign Service) – he served in Germany from July 1965 through March 1966 and completed a tour of duty in Vietnam from April 1966 through March 1967
* Item 33 (Appointments and Reductions) – the highest rank he attained was private first class, and he was also reduced and promoted several times both while in Vietnam and after he returned
* Item 41 (Awards and Decorations) – no significant decorations or acts of valor warranting special recognition
* Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS) – he was confined and went AWOL various times totaling 401 days

4.  His personnel record contains several court-martial convictions and nonjudicial punishments (NJP) which show he committed the following offenses:

* Several periods of AWOL
* Disrespect to a superior
* Drunk and disorderly
* Disobeying a lawful order
* Missing formation

5.  A Report of Psychiatric Evaluation shows he was given a mental status examination on 21 November 1968.  He was found to have an immature personality which constituted a character and behavior disorder.  He was psychiatrically cleared for separation under the provisions of Army Regulation 635-212 (Personnel Separations). 

6.  On 27 December 1968, the unit commander advised the applicant that he was being recommended for discharge under the provisions of Army Regulation   635-212, by reason of unfitness.  His commander noted that he had frequent incidents of a discreditable nature with civil and military authorities and had established a pattern for shirking.  

7.  On 30 December 1968, he consulted with counsel regarding his separation for unfitness under the provisions of Army Regulation 635-212.  He waived his right to have his case considered by a board of officers and to personally appear before that board.  He also elected not to submit any statements on his own behalf.

8.  On 6 June 1969, the General Court-Martial Convening Authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness.  He directed the applicant be issued an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged on 10 July 1969, under the provisions of Army Regulation 635-212, for unfitness.  He was given a separation program number (SPN) of 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities) and was separated UOTHC, in pay grade E-1.  He had completed 3 years, 1 month, and 23 days of total service for pay and had 401 days of lost time due to AWOL and confinement.  
10.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop the individual as a satisfactory Soldier were unlikely to succeed.

11.  On 4 August 1977, he was notified by the Office of The Adjutant General and The Adjutant General Center, Washington, DC, that his application for upgrade of his discharge under the DOD SDRP was considered by the Army Discharge Review Board (ADRB) and his UOTHC discharge had been upgraded to a GD, under honorable conditions, effective 27 June 1977.  

12.  On 25 October 1978, his case was reconsidered by the ADRB under the provisions of Public Law 95-126 which resulted in a determination that the initial discharge was proper and equitable and a majority vote of the ADRB not to affirm the SDRP upgrade action.  The ADRB proceedings informed the applicant that while this decision did not change the discharge he now had, it may impact his ability to acquire VA benefits.  

13.  A DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued which stated his discharge was reviewed in accordance with Public Law 95-126 and a determination was made that changed his character of service under the provisions of DOD SDRP, dated 4 April 1977.

14.  The DOD-SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 4 August 1964 and 28 March 1973, inclusive.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act of misconduct that would be subject to criminal prosecution under civil law.

15.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  His request to affirm his GD was carefully considered.  His entire record of service was taken into consideration to include his personal history and contentions.  His service was not sufficient to warrant an affirmation of his discharge.

2.  The ADRB upgraded his UD to a GD under the provisions of DOD-SDRP on 27 June 1977; however, this upgrade was not affirmed under the provisions of discharge review standards established by the Department of the Army in accordance with Public Law 95-126.  

3.  The evidence shows that the applicant had behavioral problems but no mental disorder.  He had been administered NJP and was convicted by court-martial on several occasions.  He had 401 days of lost time due to numerous periods of AWOL and confinement.   

4.  He was properly separated on 10 July 1969 in accordance with regulations then in effect and there is no indication of procedural errors, which would have jeopardized his rights.  The type of discharge directed and the reason for discharge is appropriate considering the facts of the case.

5.  As a result, his service was not sufficient to warrant an affirmation of his GD.

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)                                         AR20110011501





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ABCMR Record of Proceedings (cont)                                         AR20110011501



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