IN THE CASE OF:	  

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130020864 


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 at the time of his discharge, he was suffering from severe post-traumatic stress disorder (PTSD) resulting from his honorable combat service in the Republic of Vietnam.   

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a representative of the Disabled American Veterans as Counsel, he did not render a request on the applicant's behalf. 

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 (RA) on 22 September 1964.  On        27 December 1965, the applicant reenlisted in the RA for a period of three years in military occupational specialty 13A (Field Artillery Basic), and he served in the Republic of Vietnam for the period 22 March 1966 to 17 March 1967. 

3.  His record contains the following disciplinary history:

	a.  DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 October 1966, shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for failing to obey a lawful order.

	b.  DA Form 2627-1, dated 3 February 1967, shows he accepted NJP under the provisions of Article 15, UCMJ for using disrespectful language toward a superior officer and for willfully disobeying a lawful order.

	c.  Headquarters, 1st Battalion, 78th Artillery, 2nd Armored Division, Special Court-Martial Order Number 15, dated 7 July 1967, shows he pled guilty and he was found guilty of absenting himself from his unit from 1 to 6 and 9 to 22 June 1967.

	d.  Headquarters, Special Troops, Special Court-Martial Order Number 931, dated 11 November 1967, shows he pled guilty and he was found guilty of absenting himself from his unit from 3 to 27 August, 27 August to 27 September and 28 to 30 September 1967.

4.  On 27 November 1967, the applicant underwent a psychiatric evaluation at Fort Jackson, SC.  The applicant was found to be mentally responsible, both to distinguish right from wrong and to adhere to the right.  He was diagnosed with a long-standing antisocial personality which existed prior to service and he was psychiatrically cleared for any administrative action deemed appropriate by the command.

5.  The complete facts and circumstances surrounding his discharge are not available for review.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged under other than honorable conditions on 19 January 1968 under the provisions of Army Regulation 635-212 (Personnel Separations –  Discharge – Unfitness and Unsuitability), 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 DD Form 214 shows he completed a total of 2 years, 9 months, and 2 days of active military service with time lost for the periods 1 through 5 June 1967, 9 June through 30 July 1967, 3 August through 26 September 1967, 28 through 29 September 1967, and 2 October 1967 through 16 January 1968.   

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  His records are void of any evidence and he has not provided sufficient evidence that shows he was ever diagnosed with or treated for PTSD or any other mental health disorder while serving in the Army.

8.  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.

9.  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 received NJP for being disrespectful and failing to follow orders and he was convicted by special courts-martial for numerous additional offenses of being absent from his unit without proper authority.  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.  Although the applicant claims he was suffering from PTSD at the time of his discharge, his service records are void of any evidence and he has not provided sufficient evidence that shows he was ever diagnosed with or treated for PTSD or any other mental health condition while serving in the Army.  

5.  In light of the foregoing, there is an insufficient evidentiary basis for upgrading the applicant's discharge and he is not entitled to 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)                                         AR20130020864





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ABCMR Record of Proceedings (cont)                                         AR20130020864



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