IN THE CASE OF:	  

		BOARD DATE:  17 October 2013

		DOCKET NUMBER:  AR20130000929 


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 that his undesirable discharge be upgraded to general, under honorable conditions.  

2.  The applicant states he spent two tours in Vietnam.  He contends that he was very young upon his return from Vietnam and could not control his condition.  He was also a drug addict but he has been clean for years.  He concludes by stating that he has become wiser, he has accounted for his actions, and he believes he deserves some veteran's benefits based on his two tours in Vietnam.  

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence or an argument.

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 was born on 11 May 1951.  He enlisted in the Regular Army on 31 March 1970 and he was honorably discharged for the purpose of immediate reenlistment on 23 January 1973.  The following day, he reenlisted for a period of 5 years.  

3.  His DA Form 2-1 (Personnel Qualification Record) shows he served in Vietnam from 1 April 1972 to 23 March 1973.  

4.  He accepted nonjudicial punishment (NJP) on 27 November 1973 for failing to go at the time prescribed to his appointed place of duty.  

5.  A memorandum, Subject:  Record of Counseling for Indebtedness, shows he was counseled on 18 occasions for failure to pay several just debts.  

6.  A memorandum, Subject:  Record of Counseling for Misconduct, shows he was counseled on 17 occasions for acts of misconduct which include shoplifting, failure to satisfy court judgment, failure to repair, expired post registration, disobeying lawful orders, missing work, substandard duty performance, and unauthorized wearing of the Combat Infantryman Badge.

7.  On 14 February 1975, he was reduced from the rank and grade of specialist four/E-4 to private first class/E-3 due to inefficiency.

8.  On 14 February 1975, his commander recommended that he be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a, for unfitness.  The commander based his recommendation on the applicant's disruptive influence within the unit, lack of self discipline and military bearing, the fact that his general attitude required his supervisors to counsel him constantly, and his total disregard for integrity in the conduct of his financial affairs.

9.  The applicant consulted with legal counsel and was advised of the basis for the proposed separation action.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to make a statement in his own behalf.  He also acknowledged he understood that as a result of the issuance of an undesirable discharge 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.
10.  On 1 April 1975, he underwent a mental status evaluation.  The evaluation shows his behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good.  He was also found to have no significant mental illness and that he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

11.  On 21 April 1975, the Acting Staff Judge Advocate found the elimination action for unfitness administratively correct.  

12.  On 9 June 1975, the appropriate authority approved the recommendation and directed that he be issued an Undesirable Discharge Certificate.  On 20 June 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) and (5) for unfitness with his service characterized as under other than honorable conditions.  

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, established the policies and provided procedures and guidelines for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a(1) applied to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

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 applicant's contention that his undesirable discharge should be upgraded to general, under honorable conditions has been carefully considered.  

2.  The evidence of record confirms his separation processing for unfitness was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  
3.  His service in Vietnam was noted; however, based on the fact that his record of indiscipline includes NJP and an extensive record of counseling for failure to pay just debts and several acts of misconduct, his overall record of service did not support the issuance of a general discharge at the time and it does not support an upgrade of his discharge now.

4.  He implied that he was very young upon his return from Vietnam and could not control his condition; however, age is not a sufficiently mitigating factor.  He was age 21 upon his return from Vietnam and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military obligations.  Additionally, the evidence shows he was found to have no significant mental illness and that he was mentally responsible and able to distinguish right from wrong.

5.  He also indicated that he deserves some veteran's benefits based on his Vietnam service; however, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain benefits provided by the Department of Veterans Affairs.  

6.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20130000929



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ABCMR Record of Proceedings (cont)                                         AR20130000929



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