IN THE CASE OF:	   

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20120022641 


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 general discharge under honorable conditions to honorable.

2.  The applicant states he had just returned from Vietnam and he was experiencing post-traumatic stress disorder (PTSD).  The condition was not known at the time, but it definitely changed him.  He contends he was having trouble dealing with the new feelings and he is convinced the disability caused him to act out.  He is now getting help for the condition and he has accepted responsibility for his actions.  He also believes that if he had received immediate help, his military career would have ended differently.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a psychological assessment 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 applicant enlisted in the Regular Army on 6 January 1961.  He reenlisted on 17 December 1963 for a period of 3 years.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 13 May 1965 to 24 May 1966.

4.  His military records show he accepted nonjudicial punishment (NJP) on the following dates for the offenses indicated:

	a.  on 6 January 1964, for exceeding the speed limit on post;

	b.  on 28 April 1964, for driving while drunk;

	c.  on 14 December 1964, for being absent from his appointed place of duty and for violating an order from his commanding officer by failing to appear at a mandatory formation;

	d.  on 23 December 1964, for improper conduct while at his guard post;

	e.  on 10 September 1965, for being absent from his unit without authority;

	f.  on 15 October 1965, for disobeying a lawful order from his superior noncommissioned officer;

	g.  on 20 August 1966, for being absent from his unit without authority and for disobeying a lawful order from his superior commissioned officer;

	h.  on 31 October 1966, for failing to go at the time prescribed to his appointed place of duty;

	i.  on 15 November 1966, for failing to go at the time prescribed to his appointed place of duty and for breaking restriction;

	j.  on 10 April 1967, for failing to go at the time prescribed to his appointed place of duty;

	k.  on 14 April 1967, for failing to go at the time prescribed to his appointed place of duty; and

	l.  on 27 April 1967, for being absent from his unit without authority;

5.  His military records also include Summary Court-Martial Order Number 8, dated 30 April 1966, which shows he was found guilty of being absent from his unit without authority on or about 11 April 1966.

6.  On 8 May 1967, he underwent physical and mental examinations which failed to reveal any defects which would have contributed to his misconduct.  He was found mentally fit for duty without physical profile limitations, responsible for his acts, and able to understand and participate in board proceedings.

7.  On 29 May 1967, his immediate commander recommended his discharge from the Army under the provisions of Army Regulation 625-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unsuitability. 
His commander stated the reason for the proposed separation action was that the applicant had to be counseled on many occasions since his transfer to the unit for rehabilitation purposes due to his attitude toward the Army, his immediate supervisor, and his financial obligations.  The commander further stated the applicant was an unreliable individual and could not be trusted to do the simplest of tasks without constant supervision.  He was constantly missing or late for formations and he was of the opinion that the Army was indebted to him.  He had demonstrated no desire or attempt to change his actions or attitude.

8.  The applicant consulted with counsel and he was advised of the basis for the contemplated separation action and his right to present his case before a board of officers, to submit a statement in his own behalf, and to be represented by counsel.  He elected to waive his rights and elected not to submit a statement in his own behalf.  He also indicated that he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions.  He also acknowledged that he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life as a result of a discharge under conditions other than honorable.

9.  On 2 June 1967, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 and directed the issuance of a General Discharge Certificate.  On 12 June 1967, he was discharged accordingly.

10.  There is no evidence in his military records showing he was suffering from PTSD or evidence of mitigating factors that justify the frequency of his acts of misconduct.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  He provides a psychological assessment report from the Santa Fe Veterans' Center, dated 5 June 2008, which states he was diagnosed as suffering from PTSD and other conditions.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to honorable because he had just returned from Vietnam and he was suffering from PTSD.

2.  The evidence of record shows he underwent a physical and mental examination which found him mentally fit for duty without physical profile limitations, responsible for his acts, and able to understand and participate in board proceedings.  There is no evidence in his military records showing he was suffering from PTSD or evidence of mitigating factors that justify the frequency of his acts of misconduct.  Furthermore, the evidence shows his misconduct commenced prior to his assignment to Vietnam.

3.  The evidence of record also confirms his separation processing was accomplished in accordance with the applicable regulation.  He consulted with counsel; he was advised of the basis for the separation action; he was provided the opportunity to present his case before a board of officers; and he had the opportunity to submit statements in his own behalf, which he elected not to do.  Therefore, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His record of indiscipline includes NJP on 12 occasions and one summary court-martial conviction and are clear and demonstrable reasons why his discharge should not be upgraded.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20120022641



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ABCMR Record of Proceedings (cont)                                         AR20120022641



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