BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140003106 


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 under other than honorable conditions discharge. 

2.  The applicant states he enlisted (not drafted) because his recruiter promised him assignment to Germany or Japan for his first duty station.  After basic combat and advanced individual training, he was sent to Vietnam.  He was lied to by the Army.  His grandmother died while he was in Vietnam.  He submitted a leave request but he was denied leave.  He was devastated and a pattern of misbehavior began soon thereafter.  He served his country in Vietnam and he now has service-connected disabilities (ischemic heart disease, post-traumatic stress disorder (PTSD), and hearing loss) that are affecting him. 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Certificate of death

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions discharge. 

2.  Counsel states the applicant volunteered to join the Army.  He joined before he could be drafted.  He joined with a promise from the recruiter that his first duty station would be Germany or Japan.  Instead, he was sent to Vietnam.  While in Vietnam, his grandmother (the lady who raised him) passed away on 1 March 1970.  He requested leave but his request was denied which devastated him.  Soon after, his pattern of behavior started.  Eventually, he was faced with disciplinary action and ultimately discharged.  He now suffers from presumptive Agent Orange conditions (ischemic heart disease and PTSD) and hearing loss.  

3.  Counsel does not provide any 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's records show he enlisted in the Regular Army on 11 August 1969.  His DD Form 4 (Enlistment Contract) shows he enlisted for training in military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).  There is no promise of an assignment to Japan or Germany on his enlistment contract. 

3.  He completed basic combat and advanced individual training and he was awarded MOS 76P.  His DA Form 20 (Enlisted Qualification Record) which was created upon his entry on active duty listed his area of preference as:

* Continental United States:  Fort Ord and the California area
* Overseas service: No preference

4.  Following completion of MOS training, he served in Vietnam from 11 January 1970 to 14 December 1970.  

5.  On 5 May 1970, in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military (UCMJ) for violating a general regulation.  

6.  On 9 June 1970, he was convicted by a special court-martial of:

* one specification of behaving himself with disrespect toward his superior commissioned officer
* one specification of damaging a military vehicle by kicking and breaking the windshield
* one specification of assaulting another Soldier (specification/charge dismissed)

7.  The court sentenced him to a forfeiture of pay for 3 months, reduction to the lowest enlisted grade, and restriction.  The convening authority approved his sentence on 17 June 1970. 

8.  Upon completion of his Vietnam tour, he was reassigned to Fort Hood, TX.  While there, he accepted NJP under the provisions of Article 15 of UCMJ on/for: 

* 14 January 1971, being disrespectful to his superior noncommissioned officer
* 8 March 1971, disobeying a lawful order

9.  On 13 September 1971, he was convicted by a summary court-martial of one specification of willfully disobeying a lawful order.  The court sentenced him to a reduction to the lowest enlisted grade, hard labor for 45 days, and a suspended forfeiture of pay.  The convening authority approved the sentence on 13 September 1971. 

10.  On 20 October 1971, he was convicted by a summary court-martial of two specifications of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to a forfeiture of pay and confinement at hard labor for 30 days.  The convening authority approved the sentence on 22 October 1971. 

11.  His records show he underwent a mental status evaluation in connection with his separation.  The mental status evaluation shows: 

* he had no mental defects sufficient to warrant separation under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for physical disability
* he was mentally responsible and able to distinguish right from wrong
* he had the mental capacity to participate in board proceedings
* he met retention standards prescribed in chapter 3 of Army Regulation  40-501 (Standards of Medical Fitness)
* he was cleared for administrative separation 

12.  On 26 October 1971, he underwent a separation physical and he was found fully medically qualified for separation.  Additionally, on 6 December 1971, he signed a Statement of Medical Condition.  He indicated he underwent a separation medical examination more than 3 working days prior to his departure from place of separation and that there had been no change in his medical condition.

13.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain:

	a.  Special Orders Number 301, issued by Headquarters, III Corps, Fort Hood, TX, on 6 December 1971, ordering his discharge from active duty effective 9 December 1971 by reason of unfitness, with an under other than honorable conditions discharge. 

	b.  Memorandum, dated 9 December 1971, warning him against reentering the military reservation and indicating he had been discharged from the Army on 9 December 1971 for unfitness and his reentry into the installation would be punishable under the law. 

	c.  A duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions on 9 December 1971 under the provisions of Army Regulation 635-212, for unfitness (separation program designator code 28B).  He was issued an Undesirable Discharge Certificate.  He completed 2 year, 2 months, and 28 days of creditable active military service during this period. 

14.  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. 

15.  Army Regulation 635-212, then in effect, 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
* an established pattern showing dishonorable failure to pay just debts

16.  Army Regulation 635-212 also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

17.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.  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 9 December 1971 under the provisions of Army Regulation 635-212 by reason of unfitness.

2.  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.

3.  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 and convictions by three courts-martial.  

4.  Prior to separation, the applicant underwent a medical examination and a mental status evaluation and he was found medically qualified for separation.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention.  He provides no evidence now to show he has been diagnosed with a service-connected PTSD or other mental condition.

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)                                         AR20140003106





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ABCMR Record of Proceedings (cont)                                         AR20140003106



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