RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070006667 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald Gant

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 general discharge, upgraded by the Special Discharge Review Program (SDRP), be affirmed and be upgraded to honorable to be commensurate with circumstances surrounding the justifications for separation from active duty.

2.  The applicant states, in effect, that he believes the record to be unjust in that the separating officials failed to take into consideration “the medical/mental condition he was in at the time he went AWOL (absent without leave), which was the primary consideration in the determination for and time for discharge.”  He states that on several occasions, he had previously been diagnosed as having a "Passive-Aggressive Personality Disorder" and "Latent Schizophrenia" and there was no record or discussion of this in the separation/discharge process. 

3.  The applicant provides several copies of extracts from his medical records, a copy of a letter from the State Services Officer, Idaho Division of Veterans Services, a copy of his original DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a corrected copy his DD Form 214, and a copy of his VA (Veterans Administration) Rating Decision, in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The State Service Officer, Idaho Division of Veteran Services, as counsel for the applicant, provided a statement on behalf of the applicant's case. 

2.  Counsel states that the “documentation for the applicant's discharge by the US (United States) Army appeared to lack any consideration for his medical condition.  The ‘Other Than Honorable Conditions’ seem to rely solely on the extended AWOL without considering extenuating circumstances.  Prior to going AWOL the applicant had been stationed in Vietnam.  During that time, he had been diagnosed at the field hospital in Vietnam three times for Latent Schizophrenic, severe.  In Japan, he was diagnosed with Passive Aggressive Personality Disorder, service aggravated.”  

3.  Counsel states that the medical staff in Vietnam, after repeated diagnosis, recommended the applicant be either reassigned to CONUS or be medically discharged.  The hospital in Japan, after the third evacuation, recommended return to duty with a separation from service.  After being in the states for a few months, he received orders back to Vietnam.  At the time, his wife was having a nervous breakdown while he was in Vietnam.  At the day of transfer, he called to talk to her one more time and found out she was having another breakdown.  Apparently, he was told by the Red Cross that he would have to go to Vietnam to get approval to go home.  This is where he went AWOL.

4.  Additionally, counsel states, in effect, that at the time of discharge, the applicant waived his rights to have a board review.  It could have been to his benefit to have a review.  In the absence of documentation, other than some blocks checked and a signature on a form, it would appear that he did not received adequate counsel on his rights, options, and the ramification that his discharge may have on his future.  Since his separation from service, he has faced some serious challenges.  He has had difficulty in finding employment, and has been unable to receive benefits that rightly belong to him as a result of the period of time he was in the service, i.e. mental health issues.  The medical documentation provided, and the comments herein may establish a basis for reconsideration of the applicant’s case.

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 record shows he enlisted in the Regular Army on 3 February 1969.  He successfully completed basic combat training at Fort Lewis, Washington, and advanced individual training at Fort Leonard Wood, Missouri.  On completion of advanced training, he was awarded military occupational specialty (MOS), 62B, Engineer Equipment Assistant.  He was advanced to pay grade E-4 on 20 November 1969.

3.  The applicant served in Vietnam from 25 June 1969 to 19 June 1970. 




4.  The applicant provided a copy of a DA Form 8-275-3 (Clinical Record Cover Sheet), dated 28 November 1969, which shows that he was admitted to the 8th Field Hospital in Vietnam.  He was diagnosed as having Schizophrenic Reaction, Schizo-Affective, LOD (Line of Duty), yes.  He was transferred to the 249th General Hospital in Japan on 5 December 1969 for further medical treatment.

5.  On 7 December 1969, he was diagnosed as having Passive Aggressive Personality Disorder (LOD, yes, EPTS [(existed prior to service), service aggravated) and was returned to duty, with prescribed medication.  He was returned to duty in Vietnam. 

6.  On 5 January 1970, the applicant was diagnoses as having Latent Schizophrenia, severe, manifested by diffuse anxiety, difficulty thinking at times of stress, suicidal and homicidal ruminations, constricted affect, inappropriate affect, and concrete thinking.  The physician recommended that the applicant be air evacuated to Japan again, with advice that he be returned to a CONUS (Continental United States) assignment.  

7.  On 28 February 1970, the applicant was medically evacuated from the 8th Field Hospital to the 249th General Hospital in Japan for mental issues.  He was diagnosed with passive-aggressive personality disorder (LOD-no, EPTS) and right indirect inguinal hernia (LOD-yes, not EPTS).  On 12 March 1970, the physician recommended that the applicant be separated under the provision of Army Regulation 635-212, for unsuitability.

8.  Item 44 (Time Lost), of the applicant's DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 23 August 1970 to 4 October 1972 (774 days). 

9.  On 11 December 1972, the applicant underwent a mental status evaluation which revealed a fully oriented, alert individual, whose behavior was normal.  His mood was level, his thinking process was clear, his thought content was normal, and his memory was good.  The impression section of the evaluation form indicated that he had no significant mental illness.  It was determined that he was mentally responsible and could distinguish right from wrong and adhere to the right.  He possessed sufficient mental capacity to understand and participate in board proceedings.  He met the retentions requirements of Army Regulation 40-501, chapter 3.  


10.  On 13 December 1972, the applicant's commander recommended that he be separated from the service, under the provisions of Army Regulation 635-206, for misconduct, with an UD.  He based his recommendation on the applicant's AWOL offense from 20 August 1970 to 6 October 1972.  

11.  The applicant consulted with counsel and waived his right and elected not to submit a statement in his own behalf.  In doing so, he acknowledged that he understood he may encounter substantial prejudice in civilian life in the event a general discharge, under honorable conditions, or an undesirable discharge was issued to him.  He also acknowledged that he maybe ineligible for many or all benefits administered by the VA.

12.  On 20 December 1972, the approval authority directed that the applicant be separated and issued an UD and reduced to the lowest enlisted grade.  The applicant was discharged on 28 December 1972, under the provisions of Army Regulation 635-206, for misconduct.  He had a total of 1 year, 9 months, and 2 days of creditable service and he had 774 days of lost time due to being AWOL.

13.  On 13 April 1977, the applicant applied to the Army Discharge Review Board for an upgrade of his UD.  His UD was upgraded to general discharge, under honorable conditions, under the DOD Discharge Review Program (Special) (correctly known as the SDRP [Special Discharge Review Program]), on 7 June 1977.  A new separation document was prepared and forwarded to the applicant without his signature.

14.  A letter from the AG (Adjutant General), dated 3 November 1978, informed the applicant that the previous upgrading of his discharge was re-reviewed by the ADRB as required by Public Law 95-126.  Upon review, the ADRB determined that the applicant's discharge did not qualify for upgrading under the new uniform standards for discharge review.  Accordingly, the applicant's upgraded discharge under the DOD SDRP was not affirmed.  This letter also stated that because of a new law, the applicant was unable to use this discharge for benefits under the VA. 

15.  On 25 May 1988, the applicant applied to VA for benefits based upon his military service.  He was informed that pursuant to Public Law 95-126, entitlement to such benefits was contingent upon review of his special upgraded discharge by the ADRB and the VA.  The VA requested additional information regarding his discharge proceedings and asked that he provide them with this information within 60 days.

16.  On 8 November 1988, the VA concluded that the applicant's discharge barred him from receiving VA benefits.

17.  On 26 February 1990, the applicant appealed the decision.  The VA informed him that based on a consideration of the available evidence, compelling reasons were not shown for him being AWOL 774 days.  In addition, the available evidence did not show that he was insane at the time he went AWOL.

18.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Section VII pertained to desertion and AWOL.  It provided, in pertinent part, that an individual could be considered for discharge when the unauthorized absence has continued for more than one year. Trial by court-martial on a charge of desertion or AWOL is waived or deemed inadvisable by the general court-martial convening authority.  An undesirable discharge was normally considered appropriate.  

19.  The SDRP, often referred to as the "Carter Program," was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria to include various aspects of service in Vietnam.  Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

20.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

21.  Public Law 95-126, enacted on 8 October 1977, provided generally, that no 
VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD SDRP.  It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases.  The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

22.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was diagnosed as having Schizophrenic Reaction, Schizo-Affective, LOD, in 1969.  He was also diagnosed as having a passive aggressive personality disorder, LOD, EPTS, service aggravated.  In January 1970, his first diagnosis was changed to Latent Schizophrenia.  He was recommended for separation under the provisions of Army Regulation 635-212, for unsuitability. 

2.  There is no evidence in the available records to show that separation proceeding were ever initiated to discharge the applicant under the provisions of Army Regulation 635-212, for unsuitability.

3.  The evidence shows 6 months later, the applicant departed AWOL on 23 August 1970 and remained AWOL until 4 October 1972.   

4.  The evidence shows that the applicant underwent a mental status evaluation and was found to be mentally responsible.  He met the retention standards of Army Regulation 40-501, chapter 3, and possessed the mental capacity to understand and participate in board proceedings.  His mental evaluation indicated no significant mental illness at the time of his evaluation.  

5.  The evidence of record shows that the applicant was discharged, under the provisions of Army Regulation 635-206, for misconduct, which was evidence by his lengthy period of AWOL (774 days).  




6.  The evidence shows that the applicant's is now requesting, in effect, that his general discharge be affirmed and upgraded, in effect, to honorable to be commensurate with circumstances surrounding the justifications for his separation.

7.  The ADRB reconsidered his discharge and voted to deny affirmation under uniform standards, not withstanding the fact the he met one or more of the primary criteria and/or secondary criteria which mandated an upgrade under the DOD SDRP.  He was informed in writing, by the AG, that his previous upgrading of his discharge was re-reviewed by the ADRB as required by law.  The ADRB determined that the applicant's discharge did not qualify for upgrading under the new uniform standards for discharge reviews.  His upgraded discharge under the DOD SDRP was not affirmed.

8.  The applicant applied to VA for benefits after his discharge.  He was informed that his discharge barred him from VA benefits.  He appealed and based on his consideration of available evidence, compelling reasons for his 774 days of AWOL were not shown and the evidence did not show that he was insane at the time he went AWOL.

9.  The statement provided by counsel was considered and taken into consideration; however, the applicant could have requested that he be discharged due to his mental/ medical condition.  He resorted to going AWOL and he remained AWOL for over 2 years.

10.  In view of the circumstances in this case, the applicant is not entitled to have his upgraded general discharge affirmed or upgraded to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

__cd____  ___RG __  ___CD__  GRANT FORMAL HEARING

________  ________  ________  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.




____Carmen Duncan_________
          CHAIRPERSON




INDEX

CASE ID
AR20070006667
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071030
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19721228
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.