RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070013425 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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 that his discharge characterized as under conditions other than honorable be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was diagnosed with paranoid schizophrenia immediately following his dishonorable discharge and that he is still being treated today.  

3.  The applicant provided a copy of his medical records from the Connecticut Department of Mental Health and copies of Department of Veterans Affairs letters dated 19 April 1973 and 13 October 2006.

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 enlisted in the Regular Army on 31 January 1969 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  The highest rank that he attained while on active duty was private first class/pay grade E-3.

3.  The applicant’s records show that he was assigned to Headquarters and Headquarters Company, 1st Battalion, 61st Infantry, 1st Brigade, 5th Infantry Division (Mechanized) and that he served in the Republic of Vietnam during the period 21 June 1969 through 20 July 1970.

4.  The applicant’s records further show that he was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the National Defense Service Medal, and two overseas service bars. 

5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 May 1969, for disobeying a lawful order; on 24 July 1969, for failure to go and for failure to maintain his assigned rifle; on 31 July 1969 and on 12 September 1969, for sleeping at his appointed place of duty while in the Republic of Vietnam.

6.  On 12 April 1970, the applicant's immediate commander referred him to the mental health clinic for a psychiatric evaluation to determine his fitness for possible separation.

7.  On 15 April 1970, the applicant's records show a psychiatric evaluation was completed.  The psychiatrist's written evaluation is not available in the applicant's records for the Board to review.  The assumption is the applicant met the retention standards and that he had no psychiatric disease or defect that would warrant disposition through medical channels.

8.  On 25 April 1970, the applicant was notified of his pending separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations) for unfitness.  The specific allegations, which were the basis for the proposed action included; a record of disrespecting his superior commissioned and noncommissioned officers, substandard personal appearance, disobeying lawful orders, shirking responsibilities, his inability to train for a job, and his complete refusal to perform any military duty.

9.  On 25 April 1970, the applicant after consulting with counsel, waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement in his own behalf and acknowledged that he may encounter substantial prejudice in civilian life if a under other than honorable conditions discharge was issued.  

10.  On 27 April 1970, a special court-martial convicted the applicant of disobeying lawful orders of a superior commissioned officer on 21 March 1970.  The resultant sentence included confinement at hard labor for 3 months, forfeiture of $60.00 pay per month for four months, and reduction in grade to private E-1.  

11.  On 14 May 1970, the applicant’s immediate commander recommended the applicant be discharged from military service under the provisions of Army Regulation 635-212 for unfitness and be furnished an Undesirable Discharge.  The immediate commander stated that the applicant should be discharged because of habits and traits of character manifested by repeated commission of petty offenses and habitual shirking of his responsibilities.  The immediate commander further requested a waiver of the rehabilitative transfer requirements and concluded that a discharge was recommended due to the applicant’s performance that was characterized by behavior rendering him repeatedly subject to punitive action and that he was reprimanded on many occasions.

12.  On 19 June 1970, the separation authority approved the request to discharge the applicant in accordance with paragraph 6a(4) of Army Regulation 635-212.  He further directed that the applicant be furnished an Undesirable Discharge Certificate.

13.  The applicant was discharged on 21 July 1970 and he was issued an Undesirable Discharge Certificate.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows that he was discharged under the provisions of Army Regulation 635-212.  This form further shows the applicant's characterization of service was under other than honorable conditions and that he completed 1 year, 5 months, and 20 days of creditable active service.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 3 October 1973, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as an under other than honorable conditions.  

15.  The applicant appealed the initial ADRB decision of 3 October 1973.  On 10 October 1975, the ADRB denied the applicant's appeal and upheld the initial decision citing that insufficient evidence was presented to indicate probable material error or injustice. 

16.  On 12 July 1977, the applicant appealed the ADRB decision of 10 October 1975 citing he was deeply involved with illicit drugs while on active duty and that he could not control his habits or action because his abuse of illegal drugs.   

17.  On 18 November 1977, the applicant's records and discharge proceedings were heard under the provisions of the Special Discharge Review Program, specifically the Laird Memorandum in Drug Related Discharges.  

18.  On 12 December 1977, the ADRB denied the applicant's appeal and upheld the original decision of the ADRB on 3 October 1973 citing the applicant's military personnel and medical records failed to support the applicant's contention that his use of illegal drugs was the primary factor influencing his substandard behavior.  The ADRB noted the applicant did not indicate during his separation physical that he had used drugs, nor were there any reports pertaining to drug use in the applicant's file.

19.  The applicant provided comprehensive records from the Connecticut Mental Health Center located in New Haven, Connecticut.  The pertinent records are as follows:

     a.  A client episode information summary sheet which shows he received treatment on ten separate occasions starting in 21 May 1971 through 7 July 2004, the date the report was printed.

     b.  On 5 May 1971, he was diagnosed with drug dependence, cannabis sativa.

     c.  On 1 October 1971, he was diagnosed with an anxiety neurosis, psychophysociologic disorder, and gastrointestinal disorder.  Records show he did not follow up with medical or psychological treatment after his initial diagnosis in 1971.  He was seen intermittently with the same diagnosis in 1978.

     d.  On 9 April 1980, he was treated for psychophysociologic disorder.  He intermittently sought counseling on 28 October 1981, 15 November 1990, 10 December 1991, 10 April 1992, and on 5 April 1995.

     e.  A psychodiagnostic assessment, dated 24 March 2004, shows he was evaluated on five dates between the period 29 February 2004 to 9 March 2004.  The diagnosis was psychotic disorder, not otherwise specified.     

     f.  On 19 April 2004, he was diagnosed with schizophrenia, disorganized type with cannabis dependency (in full sustained remission), hyperlipidemia, stasis dermatitis bilateral on the lower extremities, and chronic problems with homelessness, unemployment, and financial strain.

20.  The applicant submitted copies of his Veterans Affairs records.  The records show that during the period 23 January 2004 through 25 January 2004, he was identified as a homeless veteran and was taken to a veteran's homeless shelter where he was given clean clothing and a sleeping bag.  The report was filed by the Director of the Homeless Program, Department of Veterans Affairs, in the state of Connecticut.  A further review shows he received treatment in West Haven, Connecticut in 1981.  The records submitted do show that the applicant was advised in writing that he was barred from receiving Veterans benefits from the Veterans Affairs due to the characterization of his service upon his discharge from active federal service. 

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further 
service by reason of frequent incidents of a discreditable nature with civil or military authorities.  Under this regulation and paragraph the appropriate authority could approve an honorable, a general discharge, or an undesirable discharge.

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 (emphasis added), 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 applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant’s entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  There is no evidence and the applicant has not provided any evidence of his post-service conduct and accomplishments, or his standing in the community.

3.  Evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  Evidence of record also shows that the applicant's request to upgrade his discharge was heard by the ADRB on three separate occasions and each Board determined his discharge was proper and equitable.

4.  The applicant's numerous acts of misconduct clearly support the reason for discharge and the characterization of service.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to honorable or general.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JI        _  __ENA__  __DKH__  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.





____John Infante    _____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080131
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.