MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003087427

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

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Fred M. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that the reason for his discharge from the Army be changed from Unsuitability – Personality Disorder to another reason.

APPLICANT STATES: In effect, that he was given an upgrade of his discharge to honorable but he is still tarnished by the fact that his DD Form 214, Certificate of Release or Discharge from Active Duty, still incorporates the original reason for discharge. He states that he has suffered many years and has had to carry the burden of his disgrace because of his poor judgment while in Vietnam and the format of the DD Form 214. He has been successful through his life and has not had anything negative occur to him, which would be a basis to deny his entry into a criminal justice or governmental position except for his military status.

In support of his application, the applicant submitted a self-authored appeal to the Board; a copy of the reissued DD Form 214, which has been recharacterized as Honorable; a letter addressed to the applicant from a recruiter in the Washington Army National Guard dated 30 April 1991; a copy of the notification to the applicant that he did not meet military medical standards for enlistment dated 15 March 1991; and a copy of his college transcript from Central Florida Community College dated 5 February 2003.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Regular Army for 2 years on 18 September 1969 with an option of attending Warrant Officer Flight Training. He successfully completed basic combat training at Fort Polk, Louisiana. While processing for assignment he underwent a physical examination, which revealed that he had hypertension. The applicant was disqualified from flight training. Rather than seek a discharge from his enlistment, the applicant selected alternative training and completed advanced individual training at Fort Eustis, Virginia, and was awarded the military occupational specialty (MOS) 61A (Seaman). He continued his training and, on 23 March 1970, he was reclassified and was awarded the MOS 61B (Water Craft Operator).

The applicant remained at Fort Eustis, Virginia, after he completed his advanced training and was assigned duties as a personnel specialist, MOS 71H, until he departed en route to Vietnam.

The applicant arrived in Vietnam on 8 November 1970 and was assigned to the 97th Transportation Company as a landing craft crewman.

The applicant’s records show that the highest rank and pay grade that he attained was Specialist Four, E-4. He was promoted to this rank on 24 June 1970, just over 9 months after entry on active duty.

In the absence of the company clerk, the applicant volunteered to perform clerical duties. On the company clerk's return from a special leave, the applicant served as a light vehicle driver and was being considered for assignment and duty as the operations noncommissioned officer in charge for the company.

A Standard Form (SF) 513, Clinical Record – Consultation Sheet, was completed on 17 March 1971. In the "Reason for Request" portion of the SF 513 the attending physician entered the following, "Please evaluate this patient. (on our D/A [drug and alcohol] program) – has PH [prior history] of depression leading to suicide attempts X2. Presently has nearly withdrawn and complains of impending depression and feelings of desperation. Under care of psychiatrist in States?"

A SF 539, Clinical Record – Abbreviated Clinical Record, completed later on 17 March 1971, shows in the "Pertinent History, Chief Complaint, and Condition on Admission" portion of the form that the applicant had been seen earlier in the day and had been given Thorazine and Valium and was now feeling depression-type syndrome. He was admitted for observation and for mental health consultation.

The applicant volunteered himself for participation in the Drug Amnesty Program. He was never counseled by any of his superiors before going on this program. On about 25 March 1971, he was referred to the 483rd US Air Force Hospital for a psychiatric evaluation in connection with administrative board proceedings, under the provisions of Army Regulation (AR) 635-212, by the unit commander.

In the applicant's patient evaluation report, dated 25 March 1971, the psychiatrist described the applicant as, " . . . an anxious, cooperative individual with hyperactive motor behavior. His speech is coherent. His mood is agitated. His affect is appropriate. There is no evidence of thought disorder. Memory is intact. Judgment is adequate and insight is lacking. Intelligence is considered to be within normal limits. No evidence of drugs or alcohol present. There is no evidence of psychosis or neurosis."

The applicant was diagnosed as, "Passive Dependent Personality, chronic, severe. Manifested by history of heroin addiction, dependence, helplessness, crying. Moderate stress, RVN (Republic of Vietnam) Duty. Severe predisposition, immaturity. Marked impairment. LD (Line of Duty): No, not due to own misconduct. EPTS (existed prior to service)."

The psychiatrist found that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings and that in his

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opinion, further rehabilitation efforts would probably not be productive and strongly suggested that the applicant be discharged under the provisions of AR 635-212.

The psychiatrist also found that there were, "no disqualifying mental defects sufficient to warrant disposition through medical processing channels, i.e., individual meets retention standards in Section XV, Chapter 3, AR 40-501."

The applicant had no history of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) in the unit or in his previous units of assignment.

In statements submitted in conjunction with the separation action, the unit commander, company executive office, first sergeant, and the company operations officer all described the applicant's duty performance as "outstanding" and "exceptional." Each of these individuals expressed a lack of awareness and a level of surprise at learning that the applicant was involved with drugs.

In the company first sergeant's statement, he summarized the applicant's performance of duty as outstanding. The first sergeant was not aware of the applicant's problem before his going to the Drug Amnesty Program.

The company executive officer stated that he was able to observe the applicant very closely in the orderly room and found him to be conscientious and hard working. The request to go on the Drug Amnesty Program came as a surprise to him, but since that day, he (the applicant) had received extensive consultation by a psychiatrist.

The operations officer said, in his statement, that while the applicant worked for him he showed no signs of drug use and carried out his duties in an outstanding manner. He was impressed with his work and was considering promoting him to Operations NCO before he turned himself in on the Drug Amnesty Program.

On 2 April 1971, the applicant was notified by his unit commander of his intent to initiate separation action under the provisions of Army Regulation (AR) 635-212, for unsuitability. On this same date, the applicant consulted with counsel and completed his election of rights. He waived consideration of his case by and appearance before a board of officers. The applicant opted not to submit a statement in his defense and waived representation by counsel.

On 2 April 1971, the unit commander submitted the separation action and recommended that the applicant receive a general, under honorable conditions, discharge. On 9 April 1971, the intermediate commander recommended

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approval of the separation and also recommended issuance of a general, under honorable conditions, discharge. On 12 April 1971, the approval authority approved the separation action and directed that the applicant be issued a general, under honorable conditions, discharge.

The applicant was discharged on 14 April 1971, in the rank of Specialist Four, pay grade E-4, under the provisions of AR 635-212, paragraph 13-4b, after having completed 1 year, 6 months, and 27 days active military service. Block 29 (Dates of Time Lost During This Period) shows that the applicant had no days lost time. The applicant was issued a DD Form 257, General Discharge, and his service was characterized as, "under honorable conditions," on his DD Form 214. The applicant was given an SPN (Separation Program Number) of 264 [Unsuitability-character and behavior disorder].

On 16 September 1978, the applicant made application to the ADRB for an upgrade of his discharge. The applicant asked to appear before an ADRB traveling paneling in Seattle, Washington.

The letter of notification to the applicant of the scheduled date of his appearance before the ARDB was returned, "Moved – left no address."

In his application to the ADRB, the applicant contended that, (1) his hypertensive disorder should have been detected earlier and that treatment should have been given him for the disorder, and (2) while he was under treatment of a psychiatrist in Vietnam for mental instability and drug withdrawal, a decision to allow his discharge should not have been granted until treatment was continued sufficiently to promote a recovery. The applicant claimed that he was not responsible mentally or emotionally to make a decision or accept alternatives which would affect his entire life.

A hearing, based on available records alone was conducted on 11 December 1979 by the ADRB, and a decision was made to upgrade the discharge based on the records alone. The panel unanimously voted to upgrade the applicant's discharge to honorable.

The ADRB entered in the record, as part of its rationale (Section C of OSA (Office of the Chief of Staff of the Army) Form 172) that, " . . . . there is no clear and demonstrable reason for a less than honorable discharge."

In their findings, despite upgrading the applicant's discharge to honorable, the ADRB rejected the applicant's contentions on the basis of a lack of supporting evidence other than his written testimony. The ADRB further rejected the contention and noted, incorrectly, that the applicant was discharged for shirking and not drug abuse.

The ADRB notified the applicant, on 14 January 1980, that his discharge had been upgraded.

Army Regulation 635-212, then in effect, provided that members with character and behavior disorders were subject to separation for unsuitability. An honorable or general under honorable conditions discharge was normally considered appropriate.

AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD Code 264 was used when a soldier was discharged due to Unsuitability-character and behavior disorders.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

2. The Board noted the absence of derogatory information in the applicant’s record. There is no record of misconduct, infractions of discipline, nonjudicial punishment, or courts-martial. The applicant's chain of command characterized his performance of duty in the unit as "outstanding" and "exemplary" and expressed a level of surprise that the applicant voluntarily referred himself to the Drug Amnesty Program.

3. The applicant was diagnosed by a trained psychiatrist and was found to have a Passive Dependent Personality, chronic, severe, manifested by a history of heroin addiction and dependence with marked impairment. The examining psychiatrist opined that the applicant would probably not be productive and strongly suggested that the applicant be discharged. Based upon this recommendation, command initiated action to discharge the applicant.

4. A records-only hearing was conducted and the ADRB upgraded the applicant’s discharge to honorable. The board, in its determination, found that there was no clear and demonstrable reason for a less than honorable discharge and in the process, rejected the applicant's contentions.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement.

6. In view of all the circumstances in this case, the applicant is not entitled to a change or removal of the narrative reason for separation that he now seeks.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fe ____ ___kh___ ___mm __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003087427
SUFFIX
RECON
DATE BOARDED	2003/09/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1971/04/14
DISCHARGE AUTHORITY	AR 635-212, paragraph 13-4b
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 191	110.0200
3.
4.
5.
6.