BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130018490 


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, in effect, correction of his narrative reason for separation.

2.  The applicant states:

* his Department of Veterans Affairs (VA) records will address the issues surrounding his actions
* he is asking for the benefit of the doubt to have a second chance

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letter, dated 5 September 2013, from the Social Security Administration
* letter, dated 20 April 2010, from his psychiatrist
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* VA medical records

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 enlisted in the Regular Army on 30 August 1965 for a period of 3 years.  He completed his training and was awarded military occupational specialty 61A (seaman).  

3.  Between January and May 1966, nonjudicial punishment (NJP) was imposed against him on two occasions for:

* being absent without leave (AWOL) for one day
* being AWOL from 23 April 1966 to 5 May 1966

4.  He arrived in Vietnam on 12 May 1966.   

5.  Between July and September 1966, NJP was imposed against him on two occasions for:

* sleeping on post
* breach of peace

6.  On 24 September 1966, he was convicted by a summary court-martial of leaving his appointed place of duty without authority and failing to obey a lawful order.

7.  In January 1967, NJP was imposed against him for leaving his post without a valid pass.

8.  He departed Vietnam on 11 May 1967.  He arrived in Germany on or about 
4 July 1967.

9.  Between January and February 1968, NJP was imposed against him on three occasions for:

* failure to repair
* failure to repair (two specifications)
* being AWOL for 2 and 1/2 hours 


10.  On 1 March 1968, he was convicted by a special court-martial of disobeying a lawful order and using disrespectful language toward a staff sergeant.

11.  On 23 April 1968, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  

12.  On 23 April 1968, he consulted with counsel.  On 15 May 1968, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.

13.  On 29 May 1968, he 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 2 years, 6 months, and 21 days of total active service with 69 days of lost time.

14.  There is no evidence of record which shows he was diagnosed with Post Traumatic Stress Disorder (PTSD) or any mental disorder prior to his discharge.

15.  On 18 May 1977, his discharge was upgraded to under honorable conditions (a general discharge) under the Department of Defense (DOD) Discharge Review Program (Special).  In July 1978, the Army Discharge Review Board did not affirm his DOD Special Discharge Review Program upgraded discharge under review standards required by Public Law 95-126.

16.  He provides VA medical records, dated 2009, which show he was diagnosed with PTSD; dysthymic disorder; cocaine dependence in early, sustained remission; marijuana abuse in early sustained remission; and alcohol abuse in early sustained remission.  In these records he reported he was sexually molested by a superior officer while in Germany.

17.  He also provides a letter, dated 20 April 2010, from his psychiatrist who states:

* the applicant is under his care in the PTSD clinic
* he has been treating the applicant since August 2009
* the applicant has PTSD, major depressive disorder, and a history of cocaine, marijuana, and alcohol dependence
* it is his opinion the applicant's PTSD and depression are related to his traumatic experiences while in the military

18.  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.

19.  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:

The applicant's contentions were carefully considered.  However, he was assigned the appropriate SPN code and narrative reason for separation.  Further, his misconduct began before he ever arrived in Vietnam or Germany.  Therefore, there is insufficient evidence on which to base granting 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)                                         AR20130018490



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