RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 February 2006
      DOCKET NUMBER:  AR20050010752


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his undesirable
discharge (UD).

2.  The applicant states, in effect, that he suffered from a Post-Traumatic
Stress Disorder (PTSD) that impacted his ability to serve and contributed
to the misconduct that led to his discharge.

3.  The applicant provides a Department of Veterans Affairs (VA) Statement
In Support of Claim (VA Form 21-4138) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 March 1972.  The application submitted in this case is
dated 15 July 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 29 June 1967.  He was initially trained in
and awarded military occupational specialty (MOS) 11B (Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 23 December 1967 through
28 May 1968.  During his RVN tour, he was assigned to Company A,
5th Battalion, 7th Cavalry Regiment performing duties in MOS 11B, as a
rifleman, automatic rifleman and helicopter door gunner.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 shows that while he was
serving in the RVN, he was wounded in action twice.  He received a fragment
wound to his left arm on 4 February 1968, and he received a fragment wound
to his left buttocks on 23 April 1968.

6.  The applicant was medically evacuated from the RVN to Fort Leonard
Wood, Missouri, where he arrived on 28 May 1968.  On 25 September 1968, he
was reclassified into MOS 64A (Light Vehicle Driver), and on 17 September
1969, he was honorably separated for the purpose of reenlistment.  The
separation document (DD Form 214) he was issued at this time confirms he
earned the following awards during this period of active duty service:
National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Purple
Heart (2);
RVN Campaign Medal; and Combat Infantryman Badge.

7.  On 18 September 1968, he reenlisted for six years, and on 6 October
1970, he was promoted to sergeant (SGT), which is the highest rank he
attained while serving on active duty.

8.  The applicant’s disciplinary history during the enlistment under review
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
two separate occasions and his conviction by a summary court-martial.  The
record also documents an extensive record of formal counseling for a myriad
of disciplinary infractions between August 1971 and January 1972.

9.  On 12 October 1971, the applicant accepted an Article 15 for disobeying
the lawful command of a superior commissioned officer and for being
derelict in the performance of his duties.  His punishment for these
offenses was an oral reprimand.

10.  On 18 October 1971, the applicant accepted an Article 15 for violating
a lawful regulation.  His punishment for this offense included a forfeiture
of $93.00 of which $73.00 was suspended.

11.  On 20 January 1972, a summary court-martial found the applicant guilty
of failing to go to his appointed place of duty at the prescribed time.
The resultant sentence included a forfeiture of $50.00.

12.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
medical treatment records, and there is no indication that the applicant
suffered from a disabling physical or mental condition at the time of his
discharge processing.

13.  On 1 March 1972, after being notified of his commander’s intent to
process him for separation under the provisions of Army Regulation 635-200,
by reason of unfitness, the applicant consulted legal counsel.  He was
advised of the basis for the contemplated separation action, its effects,
and of the rights available to him.  Subsequent to receiving this counsel,
he elected to waive the following rights:  consideration of his case by a
board of officers, personal appearance before a board of officers, and
representation by counsel.

14.  The applicant did submit a statement in his own behalf.  In this
statement, he indicated, in effect, that the Army had not yet learned to
deal with “Black Men”, and that the first reaction was to kick them out.
He further stated that he hoped that the fact he served in combat, was
wounded in action twice, and did his job would be taken into consideration.


15.  On 3 March 1972, the applicant’s unit commander recommended his
discharge under the provisions of Army Regulation 635-212, for unfitness.
The unit commander cited the applicant’s involvement in frequent incidents
of a discreditable nature based on this writing of checks with insufficient
funds, numerous establishments of bad credit, and poor conduct.  The unit
commander also indicated that the applicant had been formally counseled on
28 separate occasions between 19 August 1971 and 25 January 1972 by
officers and noncommissioned officers of the unit, and that he had been
informally counseled on several other occasions that were not recorded.

16.  On 22 March 1972, the separation authority approved the applicant’s
separation for unfitness, and directed he receive an UD and be reduced to
the lowest enlisted grade.  On 31 March 1972, the applicant was discharged
accordingly.  The DD Form 214 he was issued shows he completed a total of
4 years, 9 months, and 3 days of active military service.

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

18.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An UD was normally considered
appropriate for members separating under these provisions; however, an
honorable or general discharge could be awarded under special
circumstances.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he suffered from PTSD and that this was
a major factor in the misconduct that led to his discharge was carefully
considered. However, there is no evidence of record showing that he
suffered from a physically or mentally disabling condition at the time of
his discharge.  As a result, there is insufficient evidence to support his
claim.  Nevertheless, the applicant’s overall record of service warrants
equity consideration in this case.

2.  The evidence of record confirms the preponderance of the applicant’s
service, which included combat service in the RVN, was honorable.  He
earned two Purple Hearts for being wounded in action on two separate
occasions, and he earned the Combat Infantryman Badge.  Further, he
attained the rank of sergeant on 6 October 1970, based on his proven
performance.  His record reveals no acts of misconduct prior to August
1971, which was after he had completed more than 4 years of active duty
service.

3.  Although the applicant’s misconduct clearly diminished the quality of
his service below that warranting a fully honorable discharge, given the
vast majority of his service, to include his combat service in the RVN, was
honorable, it would be appropriate to upgrade his UD to a GD in the
interest of justice and equity.  Further, because his reduction was based
on his receiving an UD, his record should also be corrected to show he held
the rank of sergeant on the date of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___YM __  __MJF __  __DJP__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing that he was
issued a general, under honorable conditions discharge on 31 March 1972, in
lieu of the undesirable discharge of the same date he now holds; by showing
that he held the rank of sergeant on the date of his discharge; and by
providing him a new separation document that reflects these changes.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading his discharge to fully honorable, or to changing the reason for
his separation.




            ____Yolanda Maldonado____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050010752                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/02                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/03/31                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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