IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011969 


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 honorable discharge be affirmed.

2.  The applicant states, in effect, that his discharge was upgraded by the Army Discharge Review Board (ADRB) but was not affirmed and it should be because he served honorably in Vietnam and came back a psychological mess because of his combat experiences.  He also states that he now lives a good and sober life.

3.  The applicant provides a two-page statement explaining his application, his DD Form 214 (Report of Separation from Active Duty), and five third-party statements.

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 with parental consent on 1 September 1966 for a period of 4 years and assignment to the Army Security Agency.  He completed his basic training at Fort Leonard Wood, Missouri and was transferred to Fort Devens, Massachusetts to undergo his advanced individual training (AIT).  For reasons not explained in the available records, he did not complete his AIT and was transferred to Fort Sam Houston, Texas 2 months later to undergo AIT as a medical corpsman.  He completed his AIT and was transferred to Fort Bennng, Georgia on 19 July 1967 for assignment to the 675th Medical Detachment.

3.  On 5 August 1967, he was transferred to the 54th Medical Detachment (Helicopter Ambulance) and on 22 August 1967 he was transferred to Vietnam with his unit.  On 11 March 1968, he was transferred to the 51st Medical Company, and on 5 April 1968 nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order of his commanding officer.

4.  On 10 April 1968, he was assigned to the 566th Medical Company, and on 22 May 1968 he was transferred to the 22d Surgical Hospital.

5.  He departed Vietnam on 19 August 1968 for assignment to Fort Knox, Kentucky.

6.  On 8 October 1968, he was arrested by civil authorities in Louisville, Kentucky for the sale and possession of marijuana.

7.  On 25 October 1968, NJP was imposed against him for speeding on post.

8.  On 22 November 1968, NJP imposed against him for being absent without leave (AWOL) from 2 November to 21 November 1968.

9.  On 25 April 1969, NJP was imposed against him for being derelict in the performance of his duties, for two specifications of disobeying lawful orders from a superior noncommissioned officer, for being disrespectful in language towards a superior commissioned officer, for being out of uniform during duty, and for failure to go to his place of duty.

10.  On 16 May 1969, he was convicted pursuant to his pleas by a special court-martial of wrongfully communicating a threat of harm to another Soldier, of disobeying a lawful order from a superior noncommissioned officer, of being disrespectful in language towards a superior noncommissioned officer, and of assaulting another Soldier.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.


11.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs (VA) on 21 August 1970.  However, his records do contain a duly-constituted DD Form 214 signed by the applicant which shows that he was discharged under other than honorable conditions on 10 July 1969 under the provisions of Army Regulation 635-212 for unfitness based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 2 years, 7 months, and 9 days of active service and had 91 days of lost time due to AWOL and confinement.

12.  On 17 November 1970, he applied to the ADRB for an upgrade of his discharge and on 1 September 1971, the ADRB denied his request.  It appears that he was incarcerated in the New Mexico State Penitentiary at the time of his request.

13.  The applicant again applied to the ADRB for an upgrade of his discharge under the Special Discharge Review Program (SDRP) and on 25 May 1977, the ADRB upgraded the applicant’s discharge to an honorable discharge.

14.  On 3 April 1978, the ADRB reviewed the applicant’s request for affirmation of his discharge under Public Law 95-126 and determined that his record of service did not warrant affirmation.  The ADRB voted unanimously to deny affirmation of his discharge.

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.
17.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.    

DISCUSSION AND CONCLUSIONS:

1.  The findings and conclusions of the ADRB in its decision not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards appears to have been appropriate.  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 and there is no indication of procedural errors that would tend to jeopardize his rights.  

2.  The evidence of record clearly shows that the applicant had an extensive disciplinary record and that he exhibited a total disregard for military authorities.  Notwithstanding the original determination by the ADRB, his service was not satisfactory and, that his discharge should not be affirmed.  

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)                                         AR20110011969





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ABCMR Record of Proceedings (cont)                                         AR20110011969



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