BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120006727


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, the brother-in-law of a former service member (FSM), requests the FSM's discharge under conditions other than honorable be upgraded to honorable.

2.  The applicant states the FSM is a decorated veteran who served his tour in Vietnam and has suffered from post-traumatic stress disorder (PTSD) ever since.  The Army provided no help or treatment.  He was discharged prior to 1971.  The FSM is permanently disabled by multiple strokes.  He was approved for social security disability benefits on 23 February 2012.  The FSM is unable to handle this paperwork by himself.  His recent strokes have left him with impairments that affect him both physically and cognitively.  He can no longer even sign his name.  

3.  The applicant provides copies of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a psychological evaluation report.

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 FSM enlisted in the Regular Army on 29 February 1968.  He held military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) he served in Vietnam from 17 August 1968 through 16 August 1969, 

	b.  item 41 (Awards and Decorations) the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Bronze Star Medal with "V" Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Campaign Medal, two overseas service bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and

	c.  item 44 (Time Lost) 4 entries totaling 49 days due to AWOL and confinement. 

4.  The FSM's record shows he:

	a.  accepted nonjudicial punishment (NJP) under the provisions of Article
15, Uniform Code of Military Justice (UCMJ), on:

		(1) 19 April 1969 for being found sleeping after being posted as radio watch; 

		(2) 29 January 1970 for being absent without leave (AWOL) from 20 to 
26 January 1970;

		(3) 11 March 1970 for failing to comply with post registration regulations; and

	b.  was found guilty by a special court-martial on 27 April 1970 of violating a lawful general regulation by possessing one pill vial containing quantities of lysergic diethylamide, and 57 tablets containing lysergic diethylamide (LSD); and being absent from his unit from 19 to 25 February 1970 and from 6 to 13 April 1970.

5.  The FSM's discharge processing documentation is not available.  However, his DD Form 214 shows he was administratively discharged on 2 July 1970 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Frequent Incidents of a Discreditable Nature).  He had completed 2 years, 2 months, and 16 days of total active service.  The character of his service is under conditions other than honorable.  His DD Form 214 shows in:

	a.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Republic of Vietnam Cross of Gallantry with Palm Unit Citation, Vietnam Service Medal with two bronze service stars, Combat Infantryman Badge, Republic of Vietnam Campaign Medal with Device (1960), and the Bronze Star Medal with "V" Device.

	b.  item 26a (Time Lost), continued to item 30 (Remarks) five entries totaling approximately 39 days.

6.  The FSM's medical records are not available.

7.  The psychological evaluation shows:

	a.   the FSM was referred to determine whether he has a history of PTSD that would have substantially explained the problematic behavior that ultimately led to his discharge, as such a determination would have implications for Department of Veterans Affairs (VA) benefits. 

	b.  he admitted to the evaluator that after returning from Vietnam he went absent without leave (AWOL) "several times."  He also stated he was arrested once while in the military for selling LSD.  This arrest occurred during a period of being AWOL, and the combined sentence was 6 months in the stockade.  In this particular instance, he had gone AWOL, went out selling LSD off-post, and came back on post after 30 days to get his car; he was arrested and sentenced for AWOL and possession of LSD.

8.  There is no indication the FSM applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-212 provided that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge under other than honorable conditions was normally considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7b 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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not provide any evidence to support his contentions.  The FSM's three NJP's and special court-martial conviction clearly show a record of frequent incidents of a discreditable nature.

2.  The evidence provided by the applicant was noted.  While the Board is empathetic, the FSM's current medical condition is not sufficiently mitigating to warrant an upgrade of his discharge.  There is no available evidence that the FSM was diagnosed with PTSD while on active duty or that he sought the Army's assistance for that condition.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

4.  The ABCMR does not upgrade discharges solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  Granting veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  The applicant has not shown error, injustice, or inequity for the relief he requests.  Therefore, the FSM 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 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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20120006727



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