IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130011730 


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 and correction of his narrative reason for separation.

2.  The applicant states:

	a.  The reasons were unjust because he was suffering from post-traumatic stress disorder (PTSD).  He did not know he was suffering from PTSD and the onset started in 1970 while he was serving in Vietnam.  His records show he served honorably until that period of service.  He joined the service in September 1969 at age 16.

	b.  In November 1970, he saw Americans in body bags at the Air Force base in Pleiku and that changed him from that day on.  He started having feelings of imminent death.  

	c.  He claims he was set up with drugs and given an Article 15 in October 1970.  He admitted he used marijuana.  Everything they used to discharge him were symptoms of PTSD.

	d.  He has had problems holding a job.  His family supported him most of his life and they dealt with two suicide attempts and one hospitalization in a mental hospital.  He has had two failed marriages.

	e.  He was diagnosed with PTSD by the Department of Veterans Affairs in 2008.

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 19 May 1970 and 15 December 1970
* DD Forms 215 (Correction to DD Form 214), dated 9 February 1979 and 1 September 2011
* birth certificate showing he was born on 11 January 1953
* medical records from the Department of Veterans Affairs

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's enlistment contract, dated 11 September 1969, shows he enlisted in the Regular Army on 11 September 1969 for a period of 3 years.  His date of birth is shown as 11 January 1952.  He completed his training and was awarded military occupational specialty 63B (wheel vehicle mechanic).  On 19 May 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 20 May 1970 for a period of 3 years.  He arrived in Vietnam on 22 July 1970.

3.  Between 19 October 1970 and 2 November 1970, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* possessing opium and marijuana, communicating a threat to a first lieutenant, and violating a general regulation
* failing to obey two lawful orders, possessing marijuana, and failing to obey a lawful general regulation
* failing to repair, disobeying a lawful order, and being disrespectful in deportment

4.  On 15 November 1970, he was notified of his pending separation for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to involvement in frequent incidents of a discreditable nature with civil or military authorities.

5.  On 15 November 1970 after consulting with counsel and being advised of the basis for the contemplated separation action, its effect, and the rights available to him, the applicant waived consideration of his case by a board of officers and representation by counsel.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He also elected not to submit a statement in his own behalf.

6.  On 16 November 1970, his unit commander initiated action to separate him for unfitness under the provisions of Army Regulation 635-212 due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the applicant's apathetic attitude toward his duties manifested by unsatisfactory performance of duties and unsatisfactory course of conduct.

7.  On 26 November 1970, he underwent a psychiatric evaluation.  He was found mentally responsible and not suffering from an incapacitating mental illness.  No psychiatric disease was noted.  He was cleared for any administrative action.

8.  On 11 December 1970, the separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.

9.  He departed Vietnam on 12 December 1970.

10.  On 15 December 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities and assigned separation program number (SPN) 28B.  He completed 1 year, 11 months, and 14 days of total active service.

11.  On 9 June 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, 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 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.

13.  Army Regulation 635-5 (Separation Documents), appendix A (SPN and Authority Governing Separations), states that SPN 28B is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was suffering from PTSD, but did not know.  However, there is no evidence of record and he provides no such evidence that shows he was diagnosed with PTSD or any mental condition prior to his discharge.  His 26 November 1970 psychiatric evaluation found him free of any mental defects.

2.  Although the applicant contends he joined the service at age 16, his enlistment contract shows he was 17 years old when he enlisted in the Regular Army.

3.  His record of service during his last enlistment included three NJP's for numerous offenses.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  His request to change his narrative reason was noted.  However, he was assigned the appropriate SPN code and narrative reason for separation.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130011730



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ABCMR Record of Proceedings (cont)                                         AR20130011730



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