IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017106 


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 correction of his discharge to show "medical" or "general."  

2.  The applicant states he was 19 years old at the time and he was involved in alcohol and drug use, both of which were not recognized at the time.  He also had major problems while in Vietnam and suffers from post-traumatic stress disorder (PTSD). 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 12 January 1973. 

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 records show he was born in January 1952 and enlisted in the Regular Army (RA) for 3 years at 17 years of age on 19 February 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 91B (Medical Specialist).

3.  He served in Alaska from 29 August 1969 to 5 March 1970 and in Vietnam from 13 April 1970 to 21 March 1971.  He attained the rank/grade of specialist four/E-4. 

4.  He was honorably discharged on 28 July 1971 for the purpose of immediate reenlistment.  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, two overseas service bars, Combat Medical Badge, and the Expert Marksmanship Qualification Badge with Rifle, Automatic Rifle, Pistol, and Machine Gun Bars. 

5.  He reenlisted in the RA on 29 July 1971.  He was 19 years and 6 months of age at the time.  He was assigned to Fort Ord, CA.  However, while at Fort Ord, he accepted NJP under the provisions of Article 15 on/for: 

* 9 August 1971, being AWOL from 7 to 9 August 1971
* 6 January 1972, being AWOL from 12 October to 23 December 1971
* 20 March 1972, failing to go at the time prescribed to his appointed place if duty

6.  On 30 November 1972, he was convicted by a special court-martial of one specification of being AWOL from 2 to 16 November 1972.  The court sentenced him to a reduction to the lowest enlisted grade, restriction for 45 days, and a forfeiture of $100 pay for 3 months.  The convening authority approved his sentence on 7 December 1972.

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions on 12 January 1973 under the provisions of Army Regulation 635-212 (Personnel Separations), for unfitness (separation program designator code 28B).  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 2 months, and 12 days of creditable active military service during this period and he had 92 days of lost time. 

8.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

9.  Army Regulation 635-212 set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

10.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service:  

	a.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 12 January 1973 under the provisions of Army Regulation      635-212 by reason of unfitness.

	b.  In the absence of evidence to the contrary and in view of his record of misconduct, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

	c.  It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This is evidenced by his multiple instances of NJP, extended AWOL, and court-martial conviction.  
2.  With respect to the narrative reason for separation (i.e., a medical discharge) and/or his arguments:  

	a.  Nothing he provides and nothing in his records corroborates his contention that he suffered from PTSD or any other behavioral health problem that caused his misconduct.  Likewise, nothing in his records shows he was unable to reasonably perform the duties required of his former grade and military specialty, or that he was medically unfit.  A comprehensive review of his records together with the evidence he provides does not support a finding of unfitness. 

	b.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his/her grade and military specialty.  The applicant did not provide evidence that he was unable to perform the duties required of his grade and military specialty.  

	c.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The available evidence shows his service was not interrupted by a physical condition or medical necessity.  It was interrupted by his misconduct and unfitness for military service. 

	d.  He was 17 years of age at the time of his enlistment.  However, he was 
19 years and 6 months of age at the time of his reenlistment.  By then, he had completed a combat tour and he had attained the rank of E-4.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age. If he was involved with alcohol and drug use, that was his choice.

3.  Based on his record of indiscipline, his service does not merit an upgrade of his discharge.  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 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)                                         AR20130017106



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ABCMR Record of Proceedings (cont)                                         AR20130017106



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