IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110013885 


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 reconsideration of an earlier request to upgrade his undesirable discharge.

2.  The applicant states:

* He was young at the time of his military service
* He made mistakes
* He has no excuse for what he did
* He has moved on and lived a productive life

3.  The applicant provides:

* One character reference letter
* Six letters from medical personnel at the Department of Veterans Affairs (DVA) in Miami, FL

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100022240, on 14 April 2011.


2.  The applicant provided a character reference letter from a previous employer.  He attests the applicant:

* demonstrated good, strong, spiritual and moral principles
* had great depth of feeling and sensitivity to others needs
* had the ability to adapt his personality to any environment to meet others needs

3.  He also provided six letters from medical personnel at the DVA in Miami.  They attest:

* he has been diagnosed with and is being treated for chronic Post Traumatic Stress Disorder (PTSD)
* he completed a 91-day residential rehabilitation treatment program for PTSD
* he is enrolled in outpatient PTSD treatment 
* he is a model patient
* he is compliant with the treatment requirements
* he has been experiencing severe PTSD symptoms since his military experiences as a Vietnam war veteran
* he was more likely than not already experiencing symptoms of PTSD when he engaged in the behavior that resulted in his discharge
* his second military discharge was likely in part due to his PTSD related issues  

4.  The documentation provided by the applicant is new evidence that will be considered by the Board.

5.  The applicant was born on 2 February 1943.  He was inducted into the Army of the United States on 13 December 1962.  He completed his training and he was awarded military occupational specialty 053.60 (Radio Teletype Operator).  On 11 December 1964, he was honorably released from active duty upon the expiration of his term of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.

6.  On 9 February 1965, he enlisted in the Regular Army for a period of 6 years.  He served in Vietnam from 19 August 1965 to 12 August 1966.

7.  His service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 15 July 1965, for being absent without leave (AWOL) from 12 July to 13  July 1965
* on 12 November 1965, for dereliction of duty while serving in the Republic of Vietnam on 8 November 1965
* on 22 November 1966, for being AWOL from 10 November to 16 November 1966

8.  On 1 August 1967, he was convicted by a special court-martial for being AWOL from 3 July to 7 July 1967 and for breaking restriction on three separate occasions.  He was sentenced to reduction to the rank/grade of private (PV1)/
E-1, forfeiture of pay for 3 months, and confinement at hard labor for 3 months.

9.  On 30 August 1967, the applicant received elimination notification from his commander under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  He was advised he could receive an undesirable discharge.

10.  On 1 September 1967, he received a mental status evaluation by a medical doctor who found no evidence of underlying, unrecognized, or medically disqualifying emotional illnesses.  The doctor cleared the applicant for any administrative action deemed appropriate by the applicant's chain of command.

11.  The applicant's commander recommended a board of officers be convened to consider separating the applicant for unfitness.  In his letter, the company commander stated the applicant had accepted NJP and he was convicted by one special court-martial.  He stated the applicant did not respond to counseling or punishment and he was beyond rehabilitation.  He concluded by stating the applicant's conduct and efficiency ratings were unsatisfactory.

12.  On 6 October 1967, a board of officers convened to determine and recommend whether the applicant should be separated for unfitness under the provisions of Army Regulation 635-212 due to repeated acts of misconduct.  The board of officers recommended the applicant be discharged from military service under the provisions of Army Regulation 635-212 for unfitness with no rehabilitation requirement.  The board also recommended issuance of an Undesirable Discharge Certificate.

13.  The appropriate authority approved the findings of the board on 12 October 1967 and directed the issuance of an Undesirable Discharge Certificate.

14.  On 20 October 1967, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to 


frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 4 years, 7 months, and 5 days of creditable active service with 45 days of time lost.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 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.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

18.  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.  The applicant contends he was young at the time and made mistakes.  However, age is not a sufficiently mitigating factor.  He was almost 20 years old when he was inducted, and 25 years old when he enlisted in the Regular Army.  Youth was not a factor contributing to his discharge.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

4.  Although a medical official at the DVA contends the applicant’s second military discharge was likely in part due to his PTSD related issues, no evidence shows the applicant was having mental problems in 1967 that interfered with his ability to perform his military duties or that were the underlying cause for the misconduct that led to his discharge.

5.  His record of service during his last enlistment included three NJPs, one special court-martial conviction, and 45 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

6.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100022240, dated 14 April 2011.



      ____________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)                                         AR20110013885



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ABCMR Record of Proceedings (cont)                                         AR20110013885



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