BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120006470 


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, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was not allowed to see a psychiatrist for post-traumatic stress disorder (PTSD) after he served a tour in Vietnam.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), a statement of support, and one page titled Etched in Stone.

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 (RA) on 16 March 1964 and he held military occupational specialty (MOS) 13A (Basic Field Artillery).  He was honorably discharged for the purpose of immediate reenlistment on 19 September 1965.  He completed 1 year, 6 months, and 4 days of net active service during this period of service.

3.  He reenlisted in the RA on 20 September 1965 and he held MOS 63C (General Vehicle Repairman). 

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 4 February 1967, for being absent without leave (AWOL) from 31 December 1966 to 17 January 1967.

5.  He served in Vietnam from 4 October 1967 to 3 October 1968.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

6.  On 14 July 1969, he was convicted by a special court-martial of one specification each of being AWOL from his assigned unit from 15 April to 25 May 1969 and 25 May to 10 June 1969.  He was sentenced to restriction to the unit area for 60 days, forfeiture of $50.00 pay per month for 2 months, and reduction to the rank/grade of private/E-2.

7.  On 3 September 1969, he was convicted by a special court-martial of one specification each of being AWOL from his assigned unit from 20 to 28 July 1969 and for breaking restriction on 20 July 1969.  He was sentenced to perform hard labor without confinement for 3 months and forfeiture of $50.00 pay per month for 3 months.

8.  There is no evidence in his available record that shows he was ever diagnosed with, or was treated for, any mental issue/disorder while on active duty.  There is no evidence that shows he ever requested to be seen by a mental health provider or a psychiatrist for PTSD or any issue/problem related to his service in Vietnam.

9.  The specific facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, the DD Form 214 he was issued for this period of service confirms he was discharged on 9 January 1970, under the provisions of Army Regulation 635-212 Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness (separation program number 28B), with an under other than honorable conditions characterization of service.  He completed 3 years, 9 months, and 21 days of net active service during this period of service with 183 days of time lost due to AWOL and/or confinement. 

10.  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.

11.  The applicant provides a statement of support, dated 13 February 2012, wherein his sister stated the applicant was a good and caring person and was fine during his first term of service.  He went to Vietnam after their younger brother died in 1966; when he came back he was mentally unstable and kept a knife under his pillow for a long time.  He did not get any counseling or help [dealing] with his demons.

12.  The applicant also provides a printout that shows a Soldier with the same last name as the applicant died in Vietnam on 22 February 1966 of multiple fragment wounds incurred during hostile action. 

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 6a stated, 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 or an established pattern of shirking.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

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 evidence of record shows the applicant appears to have demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his NJP and court-martial convictions, which were all for being AWOL.  Accordingly, his immediate commander initiated separation action against him.

2.  His record is void of the complete facts and circumstances surrounding his discharge action.  However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212, for unfitness.

3.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering the available facts of the case.

4.  There is no evidence in the available record and the applicant has not provided any evidence that shows he suffered from, was treated for, or requested treatment for PTSD or any mental issue/disorder during his active service.  His record also shows his first AWOL occurred prior to his service in Vietnam.

5.  Based on the applicant's overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120006470





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ABCMR Record of Proceedings (cont)                                         AR20120006470



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