IN THE CASE OF:	  

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120005315 


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 under other than honorable conditions discharge.

2.  The applicant states the evidence of record shows he had a medical condition that was incurred due to active military service thus making his discharge under other than honorable conditions invalid.  Prior to his service in Vietnam he completed 1 year, 9 months, and 17 days of active service with no disciplinary action.  His 17 December 1965 honorable discharge proves that he did not have a passive aggressive personality disorder prior to serving in Vietnam.  

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 17 December 1965 and 9 February 1968
* The second page of a 2-page notification of separation memorandum
* Report of Psychiatric Evaluation 
* Consultation sheet
* Request for discharge of personnel for unfitness

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's records show he enlisted in the Regular Army on 26 February 1964 and he held military occupational specialty 11E (Armor Crewmember).  He served in Germany from 14 September 1964 to 5 January 1966.

3.  While in Germany, he was honorably discharged on 17 December 1965 for the purpose of immediate reenlistment.  His DD Form 214 for this period shows he completed 1 year, 9 months, and 17 days of creditable active service.  

4.  He executed a 3-year reenlistment on 18 December 1965 and he was assigned to Vietnam on 9 February 1966.  

5.  On 28 September 1966, in Vietnam, he was convicted by a special court-martial of four specifications of being absent without leave (AWOL) from 1 to 4, 13 to 15, 18 to 19, and from 21 to 23 September 1966.  The Court sentenced him to confinement at hard labor for 6 months, a forfeiture of $90.00 pay for 6 months, and reduction to the lowest enlisted grade.  The convening authority approved his sentence on 6 October 1966.

6.  On 10 June 1967, at the conclusion of his Vietnam tour, he was reassigned to Fort Riley, KS.  While at Fort Riley, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 22 July to 2 August 1967.

7.  On 4 August 1967, he was referred by his chain of command for a psychiatric evaluation due to his multiple instances of AWOL.  The military psychiatrist stated the applicant seemed quite tense with possible suicidal gestures.  His diagnosis was that of emotional instability, chronic, moderate, manifested by excitability and ineffectiveness in the face of minor stress.  It was determined that this condition was not in line of duty; it existed prior to service.  The psychiatrist found the applicant to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  The psychiatrist also indicated it could be presumed his longstanding character and behavior disorder would exist permanently and that the applicant could not be rehabilitated to the extent that he could become an effective Soldier.  The recommendation was an administrative separation under the provisions of Army Regulation 635-212. 

8.  On 21 December 1967, at Fort Leonard Wood, MO, and consistent with his pleas, he was convicted by a special court-martial of one specification of being AWOL from his unit at Fort Riley from 29 September to 22 November 1967.  The Court sentenced him to a forfeiture of pay and confinement at hard labor for 
6 months. 

9.  On 22 December 1967, the applicant was again referred by his chain of command for a mental evaluation after he had stated that he was completely disheartened with military service and he wanted to be discharged.  He was no longer motivated and continued to be a disciplinary problem.  

10.  On 22 December 1967, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability) by reason of unfitness citing the applicant’s repeated commission of discreditable incidents with military authorities.  The immediate commander further recommended an Undesirable Discharge Certificate.

11.  On 3 January 1968, he underwent a mental evaluation at Fort Leonard Wood, MO.  The military psychiatrist diagnosed him with a passive-aggressive personality disorder but indicated the applicant:

* Met retention standards of Army Regulation 40-501 (Standards of Medical Fitness)
* He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels
* He was responsible and able to distinguish right from wrong and he had the mental capacity to understand and participate in board proceedings
* He was cleared for any administrative decisions deemed appropriate by his chain of command

12.  On 8 January 1968, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  


13.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He waived consideration of his case by a board of officers and personal appearance before a board of officers.

14.  On 3 January 1968, the applicant underwent a separation physical at Fort Leonard Wood, MO.  He did not claim any injuries or illnesses.  The military physician found him medically qualified for discharge with no limitations or restriction.

15.  On 16 January 1968, his immediate commander initiated separation action against him and recommended the issuance of an Undesirable Discharge Certificate.  The commander indicated the applicant's performance was characterized by irresponsible and impulsive behavior which rendered him a complete loss to the Army.  

16.  On 25 January 1968, his senior commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.

17.  On 3 February 1968, the separation authority approved the applicant’s discharge action under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate.  On 9 February 1968, the applicant was accordingly discharged from the Army.  

18.  The DD Form 214 he was issued confirms he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms that he completed 1 year, 5 months, and 11 days of creditable active military service during this period and he had a total of 258 days of lost time. 

19.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

20.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:

frequent incidents of a discreditable nature with civil or military authorities 

* sexual perversion 
* drug addiction 
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts

21.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states 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 first period of service, from 26 February 1964 through           17 December 1965, was indeed honorable and is not in question.  However, his second period of service was married by misconduct.  

2.  His records reveal an extensive history of indiscipline and/or misconduct including one instance of NJP, two instances of a court-martial, and multiple instances of AWOL.  Accordingly, his chain of command initiated administrative separation action against him for unfitness.  His discharge was in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Prior to his separation, he underwent a medical and a mental examination and he was found medically qualified for separation.  Twice he underwent a mental status evaluation.  Both times the military psychiatrists found him mentally competent, responsible, and able to distinguish right from wrong.  There is no evidence in his records and he did not provide substantiating evidence that shows he was medically disqualified for retention or that he did not know that his misconduct was wrong and that he mentally could not abstain from misconduct.  

4.  In view of the foregoing evidence, he is not entitled to an upgrade of his discharge. 


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)                                         AR20120005315



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ABCMR Record of Proceedings (cont)                                         AR20120005315



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