BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120010183 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he is very sorry for being non-compliant during his military service.  He regrets not being a model Soldier during his enlistment and/or tour in Vietnam.  He was young and immature at the time.  He was not aware of the impact his behavior would have on his life.  He believes being in a combat environment at the time may have led to his post-traumatic stress disorder (PTSD).  He continues to suffer from PTSD but he cannot receive care through the Department of Veterans Affairs due to the characterization of his service.  He is not a doctor but he has heard about the effects of PTSD.  He does not have any medical insurance. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050010120, on 25 April 2006. 

2.  The applicant does not meet the two-tier criteria for reconsideration in that he did not submit his request for reconsideration within one year of the Board's original decision.  However, he submits a new argument which was not previously considered by the Board.  As an exception to policy, his new argument is now being considered. 

3.  The applicant's records show he was born on 10 September 1949 and he was inducted into the Army of the United States at nearly 20 years of age on 12 August 1969.  He was trained in and held military occupational specialty 11D (Armored Reconnaissance Specialist). 

4.  On 27 December 1969, he departed his unit in an absent without leave (AWOL) status and on 24 January 1970, he was dropped from the rolls as a deserter.  He surrendered to military authorities, at Fort Lee, VA, on 29 January 1970. 

5.  On 13 February 1970, he accepted nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) for misconduct.  

6.  His records also show he served in Vietnam from 12 July to 12 December 1970.  He was awarded or authorized the National Defense Service Medal and the Vietnam Service Medal.  The highest rank/grade he attained was private/E-2. 

7.  On 8 October 1970, a flagging action was initiated by Headquarters, Americal Division, Vietnam, against the applicant.  The DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows he violated Article 134 of the UCMJ in that he had in his possession 35 tablets of a barbiturate and .29 grams of marijuana.  He was pending a court-martial and/or being considered for elimination. 

8.  Also on 8 October 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for misconduct on 5 October 1970.  

9.  On 18 November 1970, he underwent a separation physical at the 23rd Medical Battalion, Vietnam.  He was determined to be medically qualified for discharge. 

10.  The complete facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain the following documents:

	a.  Special Orders Number 347 Extract, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 13 December 1970 ordering his discharge with an under other than honorable conditions characterization of service for unfitness with the issuance of an Undesirable Discharge Certificate; and
	b.  a duly-constituted DD Form 214 that shows he was discharged on 13 December 1970 under the provisions of Army Regulation 635-212 (Personnel Separation) by reason of unfitness with a character of service as under other than honorable conditions.  This form further confirms he completed 1 year and 4 months of creditable active military service and he had 34 days of lost time.  He was assigned Separation Code Designator 28B (Unfitness - Frequent Involvement in Incidents of a Discreditable Nature with Civil/Military Authorities).

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

12.  Army Regulation 635-212 set forth the policy for administrative separation for unfitness.  It provided 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, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

14.  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 contends his undesirable discharge should be upgraded.

2.  His record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 13 December 1970 under the provisions of Army Regulation 635-212 by reason of unfitness.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  With respect to his arguments:

	a.  The applicant was nearly 20 years of age when he entered active duty and nearly 21 years of age when he committed his misconduct.  However, there is no evidence in his records and he provides none to show his actions were caused by his age or that he was any less mature than many other Soldiers of the same age who successfully completed their term of service.  

	b.  The applicant was not diagnosed with PTSD during his military service.  A separation physical found him physically qualified for separation.  Furthermore, his misconduct began prior to arriving in Vietnam.  He departed his unit in an AWOL status several months prior to serving in Vietnam.  

	c.  His current medical condition and the absence of insurance are noted; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.

4.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service clearly does not merit an upgrade of his discharge to either rgeneral or honorable. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20050010120, dated 25 April 2006.



      _______ _   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)                                         AR20120010183





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ABCMR Record of Proceedings (cont)                                         AR20120010183



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