RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060015548 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be reissued, corrected, and amended. 

2.  The applicant states, in effect, that a post discharge investigation established his conduct as "In Line of Duty (LOD)."  He states that his discharge upgrade was incomplete:  such as his AWOL (absent without leave) periods, due to a result of his mental condition/illness, which was later found to be "LOD"; and that his discharge upgrade should have reflected continuous dates of active duty service in item 12c (Net Active Service This Period), of his DD Form 214.  He adds that item 11 (Primary Specialty Number, Title and Years and Months in Specialty), of his DD Form 214, should show the correct MOS (military occupational specialty), of 76A10.  

3.  The applicant provides a copy of his DD Form 214 and a copy of his DA Form 20 (Enlisted Qualification Record) in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 January 1968, the date of his discharge.  The application submitted in this case is dated 30 October 2006 but was received for processing on 6 November 2006.

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 he was inducted into the Army of the United States on 8 August 1966.  The applicant successfully completed basic combat training and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the MOS, 76A, Supplyman.


4.  The applicant's records contain a copy of Headquarters, US Army Training Center and Fort Leonard Wood, Special Orders Number 284, dated 11 October 1966, which awarded him the PMOS (Primary MOS) of 76A10.

5.  The applicant departed AWOL on 5 January 1967, from his assigned unit, Company D, 5th Battalion, 2nd Training Brigade, Fort Lewis, Washington.   

6.  On 23 January 1967, while in an AWOL status, the applicant was admitted to the US Naval Hospital, Great Lakes, Illinois.  He was treated for the improper use of drugs, not involving addiction.  A LOD was undetermined, pending investigation.  

7.  On that same day, a narrative summary was prepared and completed on 31 January 1967, by the Chief, Neuropsychiatry Services.  The narrative summary indicated that the applicant was admitted to the Neuropsychiatric Service (NPS), Naval Hospital, on 23 January 1967 with a presenting diagnosis of acute brain syndrome, secondary to the use of LSD (Lysergic Acid Diethylamide [psychedelic drug]) intoxication.  

8.  The applicant reported to the examining physician, and it was recorded in the narrative summary, that he went to Chicago on a weekend pass from 29 December 1966 to 2 January 1967.  While he was home, he attended a New Year's Eve party where he began to drink.  He was urged to take some LSD, and he refused.  Allegedly, someone slipped some LSD into his drink and approximately one hour later he realized this because he began to have visual and auditory hallucinations.  He also reported that he had used LSD approximately a dozen times before entering the Army so he knew what it was.  He elaborated on the events that continued to occur while he was under the influence of LSD.

9.  The Chief, NPS, placed the applicant on medication four times a day.  This medicine did not appear to lessen his visual hallucinations to any degree and they persisted until time of dictation.  An EEG (Electroencephalogram) was done and this was found to be within normal limits.  He was cooperative and carried out his details without any incident and did not show any significant anxiety, depression, or signs of a functional psychosis.





10.  The Chief, NPS, final diagnosis was considered as:  brain syndrome manifested by disorders of behavior and intelligence associated with drug intoxication (Lysergic Acid Dehydrogenase) and anti-social personality.  He recommended that the applicant be transferred to an Army Hospital for 
evaluation and possible treatment of the acute brain syndrome and for appropriate disposition.  He also stated that it was the recommendation of the medical officer that he be discharged from the Army on the basis of unsuitability, or by reason of unfitness, in accordance with his visual hallucinations.

11.  On 23 February 1967, the applicant was seen by medical personnel, at the Valley Forge General Hospital, Phoenixville, Pennsylvania.  He was diagnosed as having:  drugs, improper use of/not involving addiction.  LOD, undetermined, pending investigation; and emotional instability, manifested by antisocial behavior, drug usage, homosexual activity, intense hostility to authority, lifelong maladaption.  Predispositon:  Antisocial maladaption.  Stress:  Routine. LOD, No, EPTS (existed prior to service).  Not due to own misconduct.  Condition: Unchanged.  His specialized treatment consisted of closed and open psychiatric ward care.

12.  On 26 April 1967, the registrar, from the United States Army Dispensary, Fort Sheridan, Illinois, informed the Commanding General (CG), Valley Forge General Hospital, Phoenixville, Pennsylvania, that their facility was unable to obtain any response to communications concerning a line of duty investigation pertinent to the applicant's medical issues.  

13.  On 27 April 1967, the registrar/administrative officer sent a request for an LOD determination to the Commander, Special Processing Detachment, Fort Sheridan, Illinois.  He indicates, that according to records at the dispensary, a DA Form 2173 (Statement of Medical Examination and Duty Status), pertaining to the applicant, was sent to their unit on 6 February 1967.  He adds that the applicant had been AWOL and dropped from the rolls of his parent unit on 20 January 1967 and was sent to the Special Processing Detachment on or about 30 January 1967.  The DA Form 2173 was required to close out medical records to be sent to the Surgeon General. 

14.  On 29 May 1967, the Assistant Adjutant General, Headquarters, 5th United States Army, Fort Sheridan, Illinois, requested that the Commander, Fort Sheridan, appoint an officer to conduct an LOD investigation pertaining to the applicant.  He was to advise the Commanding General, Valley Forge General Hospital, Phoenixville, Pennsylvania, of the LOD investigation determination and to furnish a report no later than 19 June 1967. 

15.  The applicant departed AWOL on 25 June 1967 and remained AWOL until he was apprehended by civilian authorities on 7 September 1967.  He was returned to military control on the same day. 

16.  In accordance with his pleas he was found guilty by a special court-martial on 12 October 1967, of being AWOL from 5 to 11 January 1967, from 12 to 23 January 1967, from 12 May to 7 June 1967, and from 25 June to 7 September 1967.  His sentence consisted of a reduction to pay grade E-1, confinement at hard labor for 6 months, and a forfeiture of pay, in the amount of $64.00 per month for 6 months. 

17.  On 19 October 1967 the applicant was seen by the Chief Hospital Psychiatrist, at the Mental Hygiene Consultation Division, Camp Whiteside, Fort Riley, Kansas.  He was diagnosed as having a Schizoid Personality, chronic, moderate, manifested by severe distortion from his affects.  Possible incipient psychotic reaction.  LOD no, EPTS.  The hospital psychiatrist indicated, on the Certificate of Psychiatric Evaluation, dated 19 October 1967, that it could be presumed that the longstanding character and behavior disorder described would tend to exist permanently.  In his opinion, the applicant could not be rehabilitated to the extent that he could be an effective Soldier and was a candidate for administrative separation under the provisions of Army Regulation 635-212.  In view of perversions (sexual), long history of crime and overuse of drugs, he should be separated for the good of the Army.

18.  On 27 December 1967, an incomplete LOD was returned as the investigating officer (IO) had departed his duty station. 

19.  On 3 January 1968, the applicant underwent a separation medical examination and was found qualified for separation with a 111111 physical profile.  

20.  On 4 January 1968, a LOD investigator was appointed to report the facts and make findings as to the LOD in the case of the applicant.  The focus of the investigation was to determine whether the injury was in the line of duty or not.  The evidence shows he was on authorized leave at the time LSD was allegedly ingested.  The evidence also shows after his authorized leave, he returned to his unit only to depart AWOL on a repeated basis.  As noted previously, the applicant was court martialed for his repeated absences before the LOD investigation was finally completed. 



21.  On 12 January 1968, the applicant’s commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212, paragraph 12a, for unfitness.  He based his recommendation on the applicant's record of four periods of AWOL totaling 117 days and one special court-martial.  He indicated that the applicant had a longstanding character and behavior disorder that would tend to exist permanently.  

22.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

23.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL on several occasions and was confined.  He had accumulated 263 days of lost time due to AWOL and confinement.

24.  On 13 January 1968, the IO completed his investigation.  The IO determined that the applicant's injury was found to be not in LOD – not due to own misconduct.  

25.  On 19 January 1968, the separation authority approved the recommendation for discharge and directed that he be furnished an undesirable discharge.  The applicant was discharged on 31 January 1968.  He had a total of 9 months of creditable service and had 263 days of lost time due to AWOL and confinement. 

26.  On 12 March 1968, the appointing authority approved the findings.  

27.  On 3 July 1968, the reviewing authority disapproved the IO's findings.  

28.  On the reverse side of the LOD, the reasons for disapproval were:  "Since the alleged drug ingestion which caused the mental unsoundness occurred during a period of apparent authorized absence and there was insufficient evidence to establish whether the subsequent absence resulted from that mental unsoundness the presumption of In Line of Duty must prevail."  This LOD was finalized by the Assistant Adjutant General (AG), Headquarters, 5th US Army, on 3 July 1968.

29.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge (UD), which was characterized as under other than honorable conditions (UOTHC), on 21 April 1979.  The ADRB determined that his discharge was proper but not equitable.  After considering 



the evidence of record, the ADRB carefully noted the four psychiatric examinations which all recommended that the applicant be discharged from the Army.  The ADRB was persuaded that the discharge was too harsh and unanimously voted to grant full relief on 11 May 1981.  He was informed that a new separation document was prepared.  

30.  Item 11 (Primary Specialty Number, Title and Years and Months in Specialty), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 January 1968, new separation document, shows the entry "09B00 Trainee), and item 12c (Net Active Service This Period), shows the entry "0 9 1" (9 months and 1 day), minus his 263 days of lost time due to AWOL.

31.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, 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.

32.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  The regulation provides, in pertinent part, that the PMOS and all additional military occupational specialties (MOS) served in, for a period of one year or more, during the Soldier’s continuous active military service, will be entered in item 11 (Primary Specialty).  For each MOS, list the title with the years and months served.  For time determination, 16 days or more count as a month and basic training (BT) and advanced individual training (AIT) are not counted.  

33.  The same regulation states, in pertinent part, that item 12c will be completed to show the amount of service, computed by subtracting item 12a (Date Entered AD This Period) from 12b (Separation Date This Period), less lost time, if any.  

34.  Paragraph 2-7, of the same regulation, pertains to issuing and reissuing DD Form 214.  In pertinent part it states that a DD Form 214 will not be reissued unless directed by proper appellate authority, unless it is determined that required corrections will not fit within the space on a single DD Form 215 (Correction to DD Form 214), unless two DD Forms 215 have already been issued and another correction is required or unless the character of service is changed.



35.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was AWOL and was admitted to a military hospital on 23 January 1967 and was treated for the improper use of drugs, not involving addiction.  A LOD was undetermined, pending investigation.  

2.  The applicant was seen by several physicians and was diagnosed as having brain syndrome manifested by disorders of behavior and intelligence associated with drug intoxication and anti-social personality.  They all recommended that he be discharged from the Army.

3.  The evidence shows that he was AWOL on four occasions and received a special court-martial for his actions.  There is no evidence the applicant appealed his conviction by special court-martial either before or after his service.

4.  An IO was appointed to report the facts and make findings as to the LOD and applicant's misconduct status.  He began his investigation on 13 January 1968.  

5.  The applicant was recommended for separation, while his LOD was being conducted.  On 31 January 1968, he was discharged under the provisions of Army Regulation 635-212, for unfitness, and was furnished an undesirable discharge.  He had completed 9 months of creditable service and had 263 days of lost time due to AWOL and confinement. 

6.  The LOD determined that the applicant's injury was found to be not in LOD-not due to own misconduct on 13 January 1968.  The findings were approved by the appointing authority on 12 March 1968.  

7.  The reviewing authority disapproved the IO's findings on 3 July 1968.  

8.  The findings of not in the line of duty – not due to own misconduct were disapproved and a presumptive finding of "In Line of Duty" was substituted.   The Assistant AG, Headquarters, 5th US Army, determined that the presumption of "In Line of Duty" must prevail based on the reasons mentioned for disapproval. 

9.  The evidence shows that the applicant applied to the ADRB for an upgrade of his undesirable discharge and it was upgraded to honorable.  He was issued a new separation document.

10.  The applicant's LOD determination was completed after his discharge and well before he applied to the ADRB for an upgrade of his discharge.  His ADRB proceedings made no reference as to changes to his LOD or correction to his AWOL periods, which he claims was the result of his mental condition/illness.  

11.  The applicant has provided no evidence, and there is none to show that he was exonerated for his AWOL time, or to show that his AWOL time, of 263 days, should be excused or removed and counted as active duty time in item 12c, of his DD Form 214.  Therefore, there is no basis to remove the recorded AWOL time shown on his DD Form 214.  There is no basis to change item 12c, of his DD Form 214.  He is also not entitled to be reissued a new DD Form 214.

12.  The applicant alleges that item 11, of his DD Form 214, new separation document, should show the correct MOS of 76A10.  He was inducted and was trained and awarded the PMOS of 76A10, Supplyman, effective 11 October 1966.  Therefore, he is entitled to correction of item 11, of his DD Form 214, new separation document, dated 31 January 1968, to show the entry "76A10, Supplyman 9 Months." 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___ena__  __AU ___  _RB ____  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 the entry "76A10, Supplyman, 9 MOS" in item 11 (Primary Specialty), of his DD Form 214.

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 correction of item 12c (Net Active Service This Period), of his DD Form 214, to show continuous dates of active duty service.




_____Eric N. Andersen______
          CHAIRPERSON




INDEX

CASE ID
AR20060015548
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070517
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19680131
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.