IN THE CASE OF:	  

		BOARD DATE:  16 January 2014

		DOCKET NUMBER:  AR20130005984 


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 undesirable discharge.

2.  The applicant states, in effect, that he does not remember all the events that led to his discharge but does think it involved his friend dying in a bus accident in Vietnam during the late 1960's or early 1970's.  He contends that he was young and not mature enough to handle the huge responsibilities placed on him.  He wishes he could take back time and change what happened because many people were hurt because of the situation.  An upgrade of his discharge will allow him to receive medical assistance for his post-traumatic stress disorder (PTSD) and exposure to Agent Orange.

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

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.  His records show he enlisted in the Regular Army on 30 January 1968 at the approximate age of 19 years and 1 month.  He completed training and was awarded military occupational specialty 64A (Light Wheeled Vehicle Driver).

3.  During his period of service he was assigned to:

* Headquarters and Headquarters Company, U.S. Army Support Command, Saigon, in the Republic of Vietnam (RVN), 29 June 1968 to 
2 February 1970
* Company B, U.S. Army Training Center, Fort Lewis, WA, 17 March 1970 to 15 November 1970

4.  The specific facts and circumstances of his discharge proceedings are not available for review; however, the applicant's record shows he accepted nonjudicial punishment (NJP) once while in the RVN (for, without proper authorization in an off limits area, operating a wrongfully appropriated government vehicle) and on five separate occasions after returning from the RVN for:

* without proper authority absenting himself from reveille and mandatory training formations
* without authority absent himself from his place of duty
* going absent without leave (AWOL) from 20 - 27 August 1970
* going AWOL from 15 - 24 March 1970
* failing to report to his duty section for scheduled duty

5.  His record contains a report of psychiatric examination, dated 7 October 1970.  The military psychiatrist noted that there was no evidence of mental disease, defect, or derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, and Separation).  Further, the applicant:

* was mentally responsible to distinguish right from wrong
* was able to adhere to the right
* had the mental capacity to understand and participate in board and other legal proceedings
* lacked motivation making further rehabilitative efforts within the military setting ineffectual



6.  On 16 November 1970, he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)).  He was issued an Undesirable Discharge Certificate.  He completed 2 years, 9 months, and 1 day of net active duty service that was characterized as under other than honorable conditions.  He had 16 days of time lost and his
DD Form 214 does not indicate he had foreign service in the RVN.

7.  His medical records are not available for review and there are no documents which show he suffered from PTSD or any other mental health condition prior to his discharge.

8.  There is no indication in his records showing he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations

9.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or when action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.  An undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  Although his DD Form 214 shows no service in the RVN, his record shows he served in the RVN from June 1968 through February 1970 with his misconduct starting while he was in the RVN and most of it occurring after he was reassigned to Fort Lewis, WA.

3.  His record shows he was 19 years of age at the time of his enlistment and 21 years of age at the time of his first offense.  He contends he was young and immature; however, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

4.  The evidence of record shows a pattern of misconduct to include acceptance of NJP on six occasions for offenses including AWOL, failure to report to his place of duty, and operating a wrongfully-appropriated government vehicle in an off-limits area.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In the absence of evidence to the contrary it is presumed the applicant was properly and equitably discharged in accordance with regulations in effect at the time and the type of discharge directed and the reasons for separation were appropriate.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  Based on the foregoing, there is an insufficient basis to upgrade his discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20130005984





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ABCMR Record of Proceedings (cont)                                         AR20130005984



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