IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130012532 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he enlisted in the Army and served a tour of duty in Vietnam.  While there he experienced the loss of several friends due to accidents, friendly fire, and other difficult situations.  Following his return from Vietnam he experienced nightmares, flashbacks, mood swings, irritability, and crying spells.  He drank heavily trying to forget what he had experienced in Vietnam.  He did not receive any help for these problems.  Upon returning from Vietnam he learned of his grandmother's death.  She had helped to raise him and he needed to attend her funeral.  His request for emergency leave to attend her funeral was not approved due to the lack of a Red Cross letter.  He went absent without leave (AWOL) to attend her funeral and then stayed around the family farm assisting his family.  At that point he found himself drinking daily, angry, and severely depressed.  He was eventually picked up by the military police and subsequently discharged without being offered treatment for post-traumatic stress disorder (PTSD) or for alcohol dependency.  He also states that he was sent to a Department of Veterans Affairs (VA) psychiatric ward after trying to kill himself on two different occasions.  He still has flashbacks and nightmares about Vietnam.  He is also a dying veteran with lung and heart disease as well as cancer and is currently under hospice care.

3.  The applicant provides:

* personal statement
* DD Form 214 (Armed Forces of the United 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.  On 10 December 1965, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 13A (Field Artillery Basic).  The highest rank he held was specialist four/pay grade E-4.

3.  He was credited with service in Vietnam from 15 May 1966 to 12 May 1967.  His record does not show any significant acts of achievement or valor during his military service.

4.  On 15 December 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being AWOL from 
4-7 December 1967.

5.  On 2 July 1968, he was convicted by a special court-martial of being AWOL from 3 January 1968 to 5 February 1968 and from 13 April 1968 to 1 May 1968.

6.  On 3 January 1969, he was convicted by a special court-martial pursuant to his guilty pleas of breaking restriction on 22 July 1968 and being AWOL from 22 July 1968 to 19 November 1968.

7.  A Mental Hygiene Consultation Service psychiatric evaluation statement, dated 20 January 1969, shows there was no evidence found of any underlying, previously unrecognized, medically disqualifying emotional illness.  He had the mental capacity to understand and participate in board proceedings. 
8.  On 29 January 1969, he acknowledged that he was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He acknowledged he understood if an undesirable discharge under conditions other than honorable were issued to him, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant then waived his rights.  He did not submit a statement in his own behalf.

9.  On 6 February 1969, his chain of command recommended his discharge from the military under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge.

10.  On 13 February 1969, the appropriate authority approved the recommendation that the applicant be discharged from the service under the provisions of Army Regulation 635-212 and directed the applicant be furnished an Undesirable Discharge Certificate.

11.  On 20 February 1969, he was given an undesirable discharge under the provisions of Army Regulation 635-212 with a separation program number code of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities).  His service was characterized as under conditions other than honorable.  His DD Form 214 shows he completed a total of 2 years, 3 months, and 16 days of active military service with 254 days of time lost before his normal expiration term of service.

12.  On 19 June 1970, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his undesirable discharge.

13.  On 26 October 1972, the ADRB denied the applicant's request to change his reason for discharge to show he was discharged due to physical disability.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  It stated an individual was subject to separation for unfitness due to 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 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, states 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 contentions were carefully considered.  However, the evidence of record does not support his request for an upgrade of his undesirable discharge.

2.  He was discharged under the provisions of Army Regulation 635-212 by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  His record shows he was given NJP for being AWOL and he was convicted by special courts-martial for additional offenses of breaking restriction and being AWOL.  His record shows he had a total of 254 days of time lost.  These frequent instances of indiscipline clearly show he did not meet the standards of acceptable conduct and performance of duty for military personnel.  This misconduct also renders his service unsatisfactory.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of recognizing a veteran's service.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, he is not entitled to a general discharge.

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)                                         AR20130012532



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ABCMR Record of Proceedings (cont)                                         AR20130012532



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