IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110024868 


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 an upgrade of his undesirable discharge to general under honorable conditions.

2.  The applicant states he had an alcohol problem and was not offered any help or assistance.  He was in the Republic of Vietnam (RVN) and suffered from post-traumatic stress disorder (PTSD).  He was self-medicating when he returned from the RVN.

3.  The applicant provides no additional evidence.

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 27 December 1961, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 120.00 (Pioneer).

3.  The applicant later attended training as a cook from 23 March to 18 May 1962 at Fort Ord, California.  He was subsequently awarded MOS 941.10 (Cook).

4.  During the period from on or about 8 June 1962 to on or about 18 May 1963, the applicant served with the 8th Transportation Company in the RVN.  When he returned to the United States he was hospitalized for 28 days from 28 June until 25 July 1963.

5.  On 26 July 1963, the applicant was assigned to the 86th Engineer Battalion, Fort Dix, New Jersey.

6.  On 20 November 1963, the applicant immediately reenlisted for 3 years.

7.  The applicant accepted the following nonjudicial punishments (NJP's):

	a.  on 9 December 1963, for disobeying a lawful order to remain available for classes and

	b.  on 4 June 1964, for failing to go to morning reveille formation on three separate occasions and for leaving the battery area without authority.

8.  An extract of military records of previous convictions shows the applicant:

	a.  was convicted by summary court-martial on 15 June 1964 of being drunk and disorderly and

	b.  was convicted by special court-martial on 20 October 1964 of offering violence against his superior officer, damaging military property, and being drunk and disorderly.

9.  On 23 November 1964, the applicant made a statement wherein he says he was counseled and advised by his commander about a recommendation to discharge him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character) and was informed he may be issued an undesirable discharge.  He declined the opportunity to consult with counsel and did not desire to make a statement on his own behalf.

10.  The discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 23 December 1964 shows that he was administratively discharged on that date under the provisions of Army Regulation 635-208, for unfitness.  His service was characterized as under conditions other than honorable.  He had completed a total of 2 years and 11 months of creditable active duty service and had 26 days of lost time.

11.  There is no evidence to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, an honorable or a general discharge was authorized as directed by the convening authority.

13.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general under honorable conditions because he had an alcohol problem and was not offered any help or assistance.  He further contends that he suffered from PTSD as a result of his service in the RVN.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  There is no evidence of record showing the applicant suffered from PTSD or any other mental condition, or that such medical condition was the proximate cause for his repeated misconduct.

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 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)                                         AR20110024868



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ABCMR Record of Proceedings (cont)                                         AR20110024868



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