IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120001524 


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, his discharge be upgraded.

2.  The applicant states, in effect:

* that he was a good Soldier prior to serving in the Republic of Vietnam (RVN) and his combat experiences in the RVN changed him drastically
* he was suffering from Post-Traumatic Stress Disorder (PTSD) at the time of his offenses
* had he been given an honorable discharge he would have been able to receive mental health and substance abuse counseling
* his undesirable discharge made him ineligible to receive Department of Veterans Affairs (DVA) benefits to address his mental issues

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter of support from a co-worker.

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 in the Regular Army on 13 January 1969 and successfully completed training.  He was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  

3.  The applicant arrived in the RVN and was assigned to Headquarters and Headquarters Company, 2nd Battalion, 501st Infantry, 101st Airborne Division (Airmobile) on 7 June 1969.  

4.  The applicant’s record shows he received general counseling from his company commander on five occasions for his misconduct:  9 December 1969, 18 April 1970, 24 August 1970, 22 July 1971, and 6 August 1971.

5.  On 23 February 1970, the applicant was convicted, by a special court-martial of committing an assault on a fellow Soldier.  His sentence consisted of confinement at hard labor for three months, a forfeiture of $82.00 pay per month for three months, and reduction to the lowest enlisted grade.

6.  The applicant departed RVN on 7 July 1970.  He was assigned to Headquarters and Headquarters Troop, 4th Squadron, 12th Cavalry, 4th Infantry Division, Fort Carson, CO, on 18 August 1970.

7.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on:

* 21 August 1970 for leaving his post before being relieved 
* 15 December 1970 for failure to be at his appointed place of duty
* 1 April 1971 for wrongfully discharging a firearm and performing his duty under the influence of alcohol
* 2 September 1971 for being drunk while on duty

8.  The applicant underwent a mental status evaluation by a military medical psychiatrist.  The military medical psychiatrist determined that the applicant could distinguish right from wrong and adhere to the right, that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels, and that the applicant had the mental capacity to understand and participate in board proceedings.  The applicant was cleared for administrative action.

9.  On 6 October 1971, the applicant's company commander initiated a request for discharge for unfitness under the provisions of Army Regulation
635-212 (Discharge Unfitness and Unsuitability).  The commander cited the applicant’s frequent incidents of a discreditable nature with military authorities as justification for the discharge action.  

10.  On 13 October 1971, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  He acknowledged that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-212.  The applicant waived counsel; he waived his rights to be heard by a board of officers and declined to submit a statement on his own behalf.

11.  The appropriate authority approved the recommendation and directed the applicant receive an undesirable discharge certificate under the provisions of Army Regulation 635-212 for unfitness.  On 16 November 1971, he was separated from the service after completing 2 years, 9 months, and 2 days of creditable active service with 33 days lost time due to confinement.

12.  The applicant provided a letter of support from a co-worker, dated 
11 January 2012.  The author states he has been a friend and fellow Choctaw Tribe member with the applicant for 20 years.  He found the applicant to always be a willing worker and a person you could count on.  The author further states that he was aware of the applicant's combat experiences and the problems he suffered as a result of those experiences.  There is no question in his mind that had the applicant been able to access proper medical treatment, he would have benefited greatly.  He believes the applicant discharge should be upgraded so that he may receive the medical treatment which he has earned and deserves for serving his country.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  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’s request for upgrade of his discharge was carefully considered and it was determined that there is insufficient evidence to support his request.  The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for DVA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the DVA.

2.  The applicant contends he was suffering from PTSD at the time of his offences.  There is no evidence in the applicant's military service records and he has not provided evidence that shows he suffered from PTSD or that any mental disorder was the cause of his offenses during and after his service in the RVN.  

3.  The applicant was evaluated by a competent military medical psychiatrist who determined there were no disqualifying mental or physical defects and that the applicant was cleared for administrative action.  Additionally, there is no evidence that the applicant sought assistance from his chain of command, chaplain, or other community support services personnel for help with his issues before resorting to his misconduct.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.
5.  The applicant's records show that he received four Article 15s, a special court-martial, and numerous general counseling's.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general under honorable conditions discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120001524





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ABCMR Record of Proceedings (cont)                                         AR20120001524



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