RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070017337 


	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.




Director



Analyst

The following members, a quorum, were present:



Chairperson



Member


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 under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he feels his discharge on 7 July 1971 is unjust because his prior discharge on 28 October 1968 was honorable.  He also states that he reentered the service thinking he was able to participate, but was unaware of his mental health status at the time and had a difficult time coping.  The applicant further states that he now understands that he was too young to understand the impact of mental illness, he now understands he was suffering from Post Traumatic Stress Disorder (PTSD), and is requesting upgrade of his discharge based on his prior service.

3.  The applicant provides copies of his 2 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), with effective dates of
28 October 1968 and 7 July 1971.

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 enlisted in the Army of the United States and entered active duty for a period of 3 years on 4 February 1966.  The applicant’s records show that his date of birth is 4 February 1949.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 62B (Engineer Equipment Maintenance).

3.  The applicant’s military service records contain a copy of Headquarters,
593rd Engineer Company (Construction), Fort Sill, Oklahoma, Unit Order Number 63, dated 22 September 1967.  This document shows that under the provisions of the Uniform Code of Military Justice (UCMJ), Article 15, the applicant was ordered to forfeit $15.00, effective 19 September 1967, based upon his misconduct.

4.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 21 September 1968.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 1800 hours, 12 September 1968, at 21st Street, Tay Ninh, Republic of Vietnam, operating a vehicle, to wit:  a 5 ton truck, in a reckless manner by driving at a speed over 40 miles per hour, a violation of Article 111, UCMJ.  The punishment imposed was 14 days extra duty.

5.  The applicant's military service records contain a DD Form 214 that shows he was honorably released from active duty (REFRAD) on 28 October 1968 in accordance with the provisions of Army Regulation 635-200, Chapter 5, Section VII (Overseas Returnee).  The DD Form 214 also shows that at the time he was REFRAD, the applicant was credited with completing 2 years, 8 months, and
25 days net service this period.

6.  The applicant’s military service records show that he enlisted in the Regular Army (RA) and entered active duty for a period of 6 years on 31 December 1968.

7.  The applicant’s military service records contain a “Corrected Copy” of Headquarters, 339th Engineer Battalion (Construction), Fort Lewis, Washington, Special Court-Martial Order Number 33, dated 15 May 1969.  This document shows the applicant was arraigned and tried before a special court-martial (SPCM) at Fort Lewis, Washington, on 12 May 1969, and charged with violation of the UCMJ, Article 86, as follows:

     a.  Specification I:  In that the applicant did, on or about 1 February 1969, without proper authority, absent himself from his unit, to wit:  22nd Engineer Company (Construction Support), located at Fort Lewis, Washington, and did remain so absent until on or about 28 February 1969;

     b.  Specification II:  In that the applicant did, on or about 24 March 1969, without proper authority, absent himself from his unit, to wit:  22nd Engineer Company (Construction Support), located at Fort Lewis, Washington, and did remain so absent until on or about 5 April 1969;

     c.  Specification III:  In that the applicant did, on or about 17 April 1969, without proper authority, absent himself from his unit, to wit:  22nd Engineer Company (Construction Support), located at Fort Lewis, Washington, and did remain so absent until on or about 23 April 1969; and

     d.  Specification IV:  In that the applicant did, on or about 25 April 1969, without proper authority, absent himself from his unit, to wit:  22nd Engineer Company (Construction Support), located at Fort Lewis, Washington, and did remain so absent until on or about 28 April 1969.

8.  Order Number 33 also shows the applicant entered a plea of guilty to all specifications and charges and he was found guilty of all specifications and charges. The Order also shows the following: 

     a.  The applicant was sentenced to confinement at hard labor for 4 months, to forfeit $90.00 per month for 4 months, and to be reduced to the grade of private/ pay grade E-1 (no previous convictions considered).  The sentence was adjudged on 12 May 1969.

     b.  On 15 May 1969, the convening authority approved only so much of the sentence as pertains to confinement at hard labor for 4 months and reduction to the grade of private (E-1), and ordered the sentence duly executed.

9.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows, on 25 May 1971, the captain serving as Commander,
543rd Supply Company, Fort Lewis, Washington, preferred charges against the applicant for, on or about 0710 hours, 17 November 1969, without authority, absenting himself from his unit, to wit: 543rd Supply Company located at Fort Lewis, Washington, and did remaining absent until on or about 1400 hours,
24 May 1971.

10.  On 28 May 1971, the applicant requested a discharge for the good of the Service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

11.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

12.  The applicant’s request for discharge included a statement submitted by the applicant on his own behalf.  This statement shows, in pertinent part, that the applicant acknowledged he started drinking heavily while serving in Vietnam during his initial enlistment and states, “I was court-martial[ed] on about May 14, 1969.  During my time in the stockade I was put in for a 212 discharge.  I took my physical and [was] seen [by] the physiatrist (sic) he told me he was rec[o]mmending me for the 212 discharge.”  The applicant adds he was drinking heavily after he was discharged and his drinking got worse when he reentered the Army.  The applicant also states that he could not stop drinking and while he was absent without leave (AWOL) he attended Alcoholics Anonymous (AA) meetings, but it did not help much and he still kept drinking.  The applicant concludes by stating, “I know I’m wrong in doing what I did but what can I say.  I’m applying for a Chapter 10.”

13.  On 3 June 1971, the captain serving as Commander, 543rd Supply Company, Fort Lewis, Washington, recommended approval of the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10, and that the applicant be furnished an undesirable discharge.  The commander’s recommendation was based on repeated counseling sessions, punishment, and rehabilitation transfers that had failed to produce an improvement in the applicant’s attitude or performance.  The commander concluded that the applicant was unsuited for service in the Armed Forces. 

14.  On 11 June 1971, the lieutenant colonel serving as Commander,
80th Ordnance Battalion (Ammunition) (Direct Support), Fort Lewis, Washington, recommended approval of the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 10.  The commander stated it was his belief the applicant would not be amenable to any form of rehabilitation or punishment as evidenced by his past record of punishments, rehabilitative transfers, an accumulation of 99 days confinement at hard labor, and court-martial charges pending against him.  The battalion commander recommended that the applicant be furnished an Undesirable Discharge Certificate.

15.  On 22 June 1971, the colonel serving as Commander, 15th Support Brigade, Fort Lewis, Washington, recommended approval of the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 10.  The commander stated that based on the nature of the applicant’s service, coupled with the most recent incident of extended absence without leave, it was his opinion that discharge of the applicant would best serve the interests of the military service. The brigade commander also recommended that the applicant be furnished an Undesirable Discharge Certificate.

16.  On 8 July 1971, the major general serving as Commander, U.S. Army Training Center, Infantry and Fort Lewis, Fort Lewis, Washington, approved the applicant’s request for discharge under the provisions of Army Regulation
635-200, Chapter 10, for the good of the Service, directed that the applicant be reduced to the lowest enlisted grade, and issued an Undesirable Discharge Certificate.

17.  The applicant's military service records contain a Standard Form 88 (Report of Medical Examination), dated 15 June 1971, completed prior to the applicant’s separation from active duty.  Item 42 (Psychiatric) in the Clinical Evaluation section of the SF 88 shows that the physician indicated his evaluation of the applicant was normal.  Item 77 (Examinee) of this document shows that the physician indicated the applicant was qualified for separation and he placed his signature on the document.

18.  The applicant's military service records contain a DD Form 214 that shows he was discharged under other than honorable conditions, on 7 July 1971, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.  The DD Form 214 also shows that at the time of the applicant’s discharge he was credited with completing 3 months and 19 days net service this period; 2 years, 11 months, and 20 days other service; 3 years,
3 months, and 9 days total service; 3 years, 0 months, and 14 days total active service; and he had 798 days lost under Title 10, United States Code 972, during the period under review.

19.  On 2 January 1982, the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  The basis for the applicant’s request was that he had a drinking problem and was supposed to get help, but did not receive the help he needed.  On 28 Jul 1982, the ADRB reviewed the records of the applicant, along with the regulations in effect at the time of discharge and at the time of review, and determined that the applicant was properly and equitably discharged.  In arriving at this conclusion, the ADRB noted that the applicant had a psychiatric diagnosis during the period of his initial enlistment, but also noted that the applicant was both psychiatrically and medically cleared for separation during the separation process.  The ADRB further noted that the applicant made a statement at the time of his discharge in which he alleged that all of his problems were caused by his drinking.  Based on the evidence and the reason for separation, the ADRB unanimously voted not to change the reason or characterization of the applicant’s discharge.

20.  Army Regulation 635-200 (General Provisions for Discharge and Release), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers and factors governing the issuance of the DD Form 214 and honorable, general, and undesirable discharge certificates. Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

21.  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.

22.  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.

23.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to an honorable discharge because he was unaware of his mental health at the time. He had a difficult time coping while in the Army, and he was too young to understand the impact of mental illness.

2.  Records show the applicant was 17 years of age at the time he initially enlisted in the Army of the United States; that he completed 2 years, 8 months, and 25 days net service; and was 19 years of age at the time he was honorably (emphasis added) released from active duty on 28 October 1968.  The evidence or record also shows the applicant had a psychiatric diagnosis during the period of this initial enlistment; however, the applicant was psychiatrically and medically cleared for separation.  Thus, the applicant’s record of service during this period refutes the applicant’s claim that he was unaware of his mental health at the time and that he had a difficult time coping while in the Army.

3.  Records show that the applicant was 19 years of age at the time he enlisted in the Regular Army, he was 20 years of age when he was convicted by SPCM, and 22 years of age at the time charges were preferred against the applicant that resulted in the applicant requesting a discharge for the good of the Service.  
The evidence of record also shows that the applicant acknowledges a history of heavy drinking during this period.  The evidence of record further shows that the applicant was medically cleared for separation during the discharge process.  
In this regard, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service during this period.

4.  The evidence of record shows that the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary and administratively correct.  Records also show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows that at a SPCM on 12 May 1969, the applicant entered a plea of guilty to the charge and all specifications of being absent without leave, was found guilty of the charge and all specifications of being absent without leave, and was sentenced to be confined at hard labor for
4 months and reduction to the grade of private (E-1).  The applicant’s record of service also shows completion of only 3 months and 19 days of his 6-year enlistment of 31 December 1968 and that he had 798 days (i.e., more than
2 years and 2 months) of lost time during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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 has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __CAD__  __QAS__   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 T. Meixell    __
      CHAIRPERSON




INDEX

CASE ID
AR20070017337
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008MMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710707
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.