RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 November 2007
	DOCKET NUMBER:  AR20070009401 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Donald L. Lewy

Member

Ms. Rea M. Nuppenau

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 an upgrade of his discharge.

2.  The applicant states that his injustice started with the recruiter that enlisted him in 1966.  Further, he believes that he was diagnosed with Type II diabetes due to exposure to Agent Orange. 

3.  The applicant provides a detailed, self-authored, and personal statement, in triplicate, prepared during the period December 2006 to February 2007, and an undated personal health statement, in support of his application. 

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 that he was born on 27 December 1951 and with parental consent, he enlisted in the Regular Army at the age of 17 on 
30 January 1969 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12A (Pioneer).  The highest rank the applicant attained during his military service was private first class/pay grade E-3.

3.  The applicant's records further show that he served in Germany during the period 4 September 1969 through 13 June 1970 and in the Republic of Vietnam during the period 1 August 1970 through 31 July 1971.  

4.  The applicant's records also show that he was awarded the National Defense Service Medal, the Vietnam Campaign Medal, the Vietnam Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) and two Overseas Bars.  The applicant's records do not show any significant acts of valor during his military service.
5.  On 9 November 1970, court-martial charges were preferred against the applicant for disobeying a lawful order by failing to go to his appointed place of duty on 15 October 1970; disobeying a written lawful order by possessing one ounce, more or less, of marijuana on 18 October 1970; and for wrongfully possessing one ounce, more or less, of opium on 18 October 1970.  

6.  On 11 November 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an undesirable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or an undesirable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf.

8.  On 16 November 1970, the applicant underwent a psychiatrist evaluation.  He was found mentally responsible, able to distinguish right from wrong, and was cleared for any action deemed appropriate by his chain of command including separation in accordance with Army Regulation 635-200.  The Battalion Surgeon noted that the applicant had no desire to stay in the service and it was felt his rehabilitation potential was low.

9.  On 13 November 1970, the applicant's immediate commander noted that the applicant had a long history of disciplinary problems to include continually absenting himself from his place of duty, refusing to obey orders of superior noncommissioned officers, seldom attending formations, disrespecting other noncommissioned officers and commissioned officers alike, and being under the influence of drugs much of the time.  The immediate commander recommended approval of the applicant’s discharge for the good of the service and that the applicant be furnished an Undesirable Discharge Certificate.
10.  On 24 November 1970, the applicant's battalion commander noted that the applicant had demonstrated ineptitude for military service and that that his continued presence served only as a demoralizing influence on the performance of others.  He recommended approval of the discharge and that the applicant be furnished an Undesirable Discharge.

11.  On 7 December 1970, the applicant's brigade commander recommended approval of the request for discharge and that the applicant be furnished an Undesirable Discharge.

12.  On 21 December 1970, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Undesirable Discharge Certificate.  On 6 January 1971, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 1 year, 10 months, and 18 days of creditable active military service and 18 days of lost time due to absence without leave (AWOL).

13.  In a lengthy, self-authored statement with detailed and explicit language, the applicant gives a background of his family and his upbringing.  He states that his problems in the Army started with the recruiter who misled him into signing up for the wrong MOS.  He describes his sexual experiences and association with drugs while stationed in Germany.  He further describes in lengthy details his multiple experimentations with drugs while in the Republic of Vietnam and how he struggled and succeeded in overcoming his extensive addiction to opium.  He also describes his counseling sessions upon return from the Republic of Vietnam and how he was finally convinced that if the recruiter had placed him in the right MOS, none of his problems would have ever happened.  He concludes that he is currently in bad health and infers that his deteriorating health is due to exposure to Agent Orange. 

14.  In an undated personal health statement, the applicant states that he was diagnosed with Type II diabetes, Type C hepatitis, and liver failure.  He also states that there is a possible link of his diabetes to his exposure to Agent Orange.  He concludes that the VA has denied him medical benefits. 

15.  On 4 January 1974, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.


16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows that he was charged with disobeying orders and possession of a controlled substance.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  The applicant is advised to pursue any medical treatment issues he believes are related to his service through the VA.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  __dll___  __rmn___  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.




							Eric N. Anderson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009401
SUFFIX

RECON

DATE BOARDED
20071120
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19710106
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.