IN THE CASE OF:	  

	BOARD DATE:	8 May 2008  

	DOCKET NUMBER:  AR20080002364 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge, with his service characterized as under other than honorable conditions, be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he was accepted for induction by the Army who had full knowledge that he had a problem with alcohol.  He was young and just off the reservation with no knowledge of the outside world.  If there had been medical or psychological help at the time, he would have been a good Soldier.  He is now, and has been for many years, an upstanding person in the community with no problems as before.

3.  In the DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, the applicant submitted with his request, he stated, in effect, all he has now is his character to stand on and hopes that his age while in service will be considered.  He was accepted in the service and was not given help.  He really did not understand the full impact this would have on his life even though he signed the statement of counseling.

4.  In support of his request, the applicant provided an addendum to his DD Form 149, Application for Correction of Military Record, dated 8 January 2008; a DD Form 293, dated 6 January 2008; a character reference letter from his sister, dated 9 January 2008; and a character reference letter from a long-time friend, dated 24 November 2007.

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 record shows the applicant volunteered for induction into the Army of the United States on 25 May 1967.  At the time of his induction, the applicant was 19 years, 11 months, and 9 days of age.

3.  Item 13a (Convicted or Adjudicated of Crime Other than Minor Traffic Violation), of the DD Form 47, Record of Induction, shows the applicant was arrested for disorderly conduct in Defiance, Arizona, and spent 6 days in jail.  He was also arrested for being drunk and disorderly at Camp Verde, Arizona, and spent 30 days in jail.  Section IV (Moral Determination), of the DD Form 47, shows he was granted a moral waiver on 1 May 1967.  The applicant was accepted for service in the Army on 25 May 1967.

4.  A DA Form 2981, Application for Determination of Moral Eligibility for Induction, dated 25 April 1967, is in the applicant's service personnel records.  This form shows the applicant was arrested for:  being intoxicated and disorderly conduct, driving while intoxicated, reckless driving, and carrying a concealed weapon.  For these infractions, the applicant was fined a total of $10.00 and spent a total of 125 days in jail.  He was sentenced to serve another 30 days in jail; however, the record shows these 30 days were suspended.

5.  Item 12 (Remarks), of the DA Form 2981, states, in part, "The individual's offenses began at age 18 and center around the illegal use of alcoholic beverages.  These offenses are not consistent enough to define a criminal pattern.  The confinement periods are more than likely a result of an inability to pay fines because of unemployment."

6.  The applicant completed his basic combat training at Fort Bliss, Texas, and his advanced individual training at Fort Huachuca, Arizona.  After completion of his advanced training, he was awarded the primary military occupational specialty 70A, General Clerk.

7.  On 8 February 1968, the applicant received a special court-martial.  He was found guilty of absenting himself without authority from his unit on 6 October 1967 and remaining so absent until 2 November 1967.  The applicant was sentenced to be confined at hard labor for two months; to forfeit $68.00 per month for two months; and to be reduced to the rank and pay grade of Private, E-1.  The sentence was approved and ordered executed on 19 February 1968.

8.  On 23 May 1968, the applicant received a special court-martial.  He was found guilty of absenting himself without authority from his unit on 2 March 1968 and remaining so absent until 7 May 1968.  The applicant was sentenced to confinement at hard labor for three months; to forfeit $68.00 per month for three months; and to be reduced to the rank and pay grade of Private, E-1.  The sentence was approved and was ordered duly executed on 23 May 1968, but the execution of that portion adjudging confinement at hard labor in excess of one month was suspended for three months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

9.  On 21 August 1968, the applicant received a special court-martial.  He was found guilty of absenting himself without authority from his unit on 17 July 1968 and remaining so absent until 28 July 1968.  The applicant was sentenced to confinement at hard labor for six months and to forfeit $73.00.  The sentence was approved and ordered executed on 30 August 1968.

10.  The applicant was promoted to the rank and pay grade Private First Class,
E-3, on 28 March 1969.  This would be the highest rank and pay grade he would attain while he served on active duty.  The applicant’s personnel records contain no documented acts of valor, achievement, or service warranting special recognition.

11.  On 20 June 1969, the applicant received nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, for absenting himself from his unit on 2 June 1969 and remaining so absent until 9 June 1969. The imposed punishment was reduction to the rank and pay grade, Private, E-2; forfeiture of $17.00; and 14 days restriction to the company area and 14 days extra duty.

12.  On 24 October 1969, the applicant received a summary court-martial.  He was found guilty of absenting himself without authority from his unit on 11 August 1969 and remaining so absent until 6 October 1969.  The applicant was sentenced to be reduced to the rank and pay grade, Private, E-1; confinement at hard labor for 30 days; and to forfeit $82.00.  The sentence was approved and ordered executed on 5 November 1969.

13.  On 21 January 1970, the applicant received a summary court-martial.  He was found guilty of being disrespectful toward his superior noncommissioned officer on 17 November 1969, of breaking restriction on 17 November 1969, and of being absent without leave for the period from 22 December 1969 to 2 January 1970.  The applicant was sentenced to be reduced to the rank and pay grade Private, E-1; confinement at hard labor for 30 days; and to forfeit $55.00.  The sentence was approved and ordered executed on 4 February 1970.

14.  The applicant underwent a separation physical examination on 13 February 1970.  A Standard Form (SF) 88, Report of Medical Examination, and a SF 89, Report of Medical History, were completed to document this examination.  Based on this medical examination, the applicant was found qualified for separation.

15.  On 3 February 1970, the applicant underwent a psychiatric evaluation.  He was diagnoses to have an anti-social personality (i.e., dyssocial problem of reservation Indian).

16.  The examining psychiatrist, a medical corps major, determined that the applicant had a history of marked social inadaptability both prior to and during his tour in the military.  The subject’s condition was part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military service.  He used poor judgment and was not committed to productivity goals and was unmotivated.

17. The psychiatrist found no evidence of mental disease or effect of derangement sufficient to warrant medical disposition under the provisions of Army Regulation 635-40, as outlined in Army Regulation 40-501, Chapter 3, Section XV, Paragraph 3-30-32.

18.  The applicant, the psychiatrist stated, was capable of distinguishing right from wrong, and adhere to the right.  He was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board or other legal proceedings.

19.  The psychiatrist did not believe that the applicant was amenable to any form of punishment, retraining, or other forms of rehabilitation within the military setting.  He described the applicant as being "grossly unfit for the Army" and recommended the applicant's administrative separation for the good of the Army.

20.  On 13 February 1970, the applicant's unit commander notified him he was being considered for discharge from the Army, under the provision of Army Regulation 635-212, and notified him of his right to present his case before a board of officers, to submit a statement in his own behalf, to be represented by counsel, or to waive his rights in the written form.

21.  The applicant acknowledged the commander's notification, on 13 February 1970, and waived his right to present his case before a board of officers, elected not to submit a statement in his own behalf, and waived representation by counsel.  In his acknowledgement, the applicant stated, in effect, he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge, under honorable conditions, was issued to him.  He further understood that as a result of issuance of an undesirable discharge, under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant summarized his acknowledgement by stating he had made his choices freely and without threats or coercion or without promise of any kind.

22.  On 16 February 1970, the applicant's unit commander recommended he be discharged from the Army, under the provisions of Army Regulation 635-212, for unfitness, and that he be furnished an undesirable discharge certificate.  The applicant was recommended for discharge for unfitness rather than unsuitability because of the applicant's military record of 3 special courts-martial, 2 summary courts-martial, and 1 Article 15.  The commander added that the applicant's behavior was intentional and not due to an incapacity within the meaning of unsuitability and that there appeared to be no grounds for other disposition.

23.  The applicant's chain of command unanimously recommended approval of the recommendation for his discharge; and, on 19 March 1970, the approval authority, a Major General, approved the applicant's discharge and directed he be issued an undesirable discharge certificate.

24.  The applicant was separated with an undesirable discharge, with the character of his service identified as, under other than honorable conditions.  

He was separated in the rank and pay grade of Private, E-1, on 25 March 1970, under the provisions of Army Regulation 635-212.  On the date of his discharge, he had completed 1 year, 8 months, and 5 days creditable military service with 423 days of time lost due to AWOL and confinement.

25.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

26.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction, or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

27.  AR 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 separation specifically allows such characterization.

28.  In a character reference letter written in behalf of the applicant, his childhood friend, a muralist, painter, and past president of the Hopi Arts and Crafts Guild, states he and the applicant grew up in the same community and have known each other most of their lives.  The span of time he shares in the letter is the period when they were struggling with their disease of alcoholism.  At the time, he states, they did not recognize alcoholism as a disease and there was little help available to those suffering from the disease.  He states, in effect, it was the applicant who first took steps to overcome his alcoholism and encouraged him to go to the "12-step meetings."  Over the past 19 years, they have both learned about life without alcohol and now bring the message of sobriety to those still suffering with the disease.  He adds that they did not become angels or saints; life still has its challenges, but they can now deal with the struggles without 

having to run to alcohol.  They work life to the best of their abilities.  The life-long friend concludes his character reference letter by stating the applicant has impacted his life deeply and admires and respects his courage to confront his disease of alcoholism and change his life with a renewed vision and mission.

29.  In a second character reference letter which was prepared by the applicant's sister, a Tribal Probation Officer with the Yavapai Apache Nation, the applicant is described as having maintained his sobriety for over 15 years and is currently employed with the Nation as a Community Health Representative Driver.  His sister truly believes that the applicant has proven to be an outstanding citizen and deserves what he is seeking – to be considered for a change in his discharge.

30.  In a third letter, written by the applicant, he states that he volunteered for the draft at the age of 18 during the Vietnam War.  He already had problems with alcohol and it gradually progressed when he joined the service.  He says this occurred because alcohol was so readily available wherever he was – from basic training on.  He had come from an Indian reservation where it was against tribal law to possess or consume alcoholic beverages or illegal drugs.  As a youth, he already had several encounters with local law enforcement agencies because of his problems with alcohol.  With the ready availability of alcohol and drugs at the Army forts and being so far away from home, along with the strangeness he encountered, he truly believes this is what led him further and further into the world of alcoholism.

31.  The applicant adds that throughout his time in the Army, he experienced numerous courts-marital and they all stemmed from his abuse of alcohol.  He would leave the Army posts and stay away because alcohol mattered more to him than anything else.  It never fazed him one bit about all the trouble he would be in with the Army, including all the time he would spend in the stockade.  Instead, he would leave again and again, knowing all the while he would be facing more of the same – time in the stockade.  He never once took time to try and understand why he continued this behavior and in the end it eventually took its toll on every aspect of his life.

32.  There is no evidence the applicant either asked for or was provided counseling or treatment for the intemperate use of alcohol during the time he served on active duty.  In his letter to the Board, the applicant states, in effect, he did not recognize the symptoms of an alcoholic and had he tried to do something about his problem back then, he could possibly have been more selective in the way he chose to be.  Perhaps his life would have turned out different.

33.  The applicant continues that upon his return to the reservation, his ways did not change much.  In fact, his problems with alcohol only progressed to a higher level until he sought help and received treatment for his alcoholic problem.  Throughout his years in sobriety, his program has taught him to accept and admit the wrongs of his past.  It is not easy but it tells him that this is the way it must be. He now knows that for him, this is the only way he can have a happier and more content life.

34.  The applicant concludes that he is now sixty years old and the wear and tear on his body from days past is more and more noticeable.  He is not as healthy as he would like to be.  What he is asking to have accomplished by writing his letter to the Board is one more dream realized and to take one more load off his shoulders.  He is asking to have his undesirable discharge from the Army changed.

DISCUSSION AND CONCLUSIONS:

1.  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 submitted an argument sufficient to satisfy this requirement, in part.  The remainder of the evidence is contained in the applicant's service personnel record – and in particular lies in the very documents that allowed his acceptance for and entrance into military service in the Army.

2.  The evidence shows and supports his report that he volunteered for induction into the Army of the United States.  In order to affect his induction, it was necessary to secure a moral waiver due to his arrest record.  The evidence shows the applicant had been arrested for disorderly conduct in Defiance, Arizona, and spent 6 days in jail.  He was also arrested for being drunk and disorderly at Camp Verde, Arizona, and spent 30 days in jail.  Section IV (Moral Determination), of the DD Form 47, shows he was granted a moral waiver on 1 May 1967 and was accepted for service in the Army on 25 May 1967.

3.  A DA Form 2981 that was completed in conjunction with this process showed essentially the same information; but, it contained additional information necessary for processing of the waiver.  This form showed the applicant had been arrested for being intoxicated and for disorderly conduct, for driving while intoxicated, for reckless driving, and for carrying a concealed weapon.  For these infractions, the applicant was fined a total of $10.00 and spent a total of 125 days in jail.  He was 

sentenced to serve another 30 days in jail; however, the record shows these 30 days were suspended.  It was acknowledged in the DA Form 2981 that the individual's offenses began at age 18 and centered around the apparent illegal use of alcoholic beverages.

4.  On approval of the moral waiver, the applicant was inducted into the Army on 25 May 1967.  At the time of his induction, the applicant was 19 years, 11 months, and 9 days of age.

5.  The applicant's age was considered, as he requested; however, there is no evidence the applicant's age impacted his ability to serve successfully.  There is no evidence the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  The most critical evidence in this case was the diagnosis and the recommendation made by the psychiatrist who examined the applicant in conjunction with his discharge from the Army.

6.  The examining psychiatrist determined that the applicant had a history of marked social inadaptability both prior to and during his tour in the military.  The subject’s condition was part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military service.  Even though the applicant was capable of distinguishing right from wrong, and adhering to the right, was responsible for his actions and possessed the mental and emotional capacity to understand and participate in board or other legal proceedings, he used poor judgment and was not committed to productivity goals and was unmotivated.  The psychiatrist found no evidence of mental disease, but he did not believe that the applicant was amenable to any form of punishment, retraining, or other forms of rehabilitation within the military setting.  He described the applicant as being "grossly unfit for the Army" and recommended the applicant's administrative separation for the good of the Army.

7.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  Based on the evidence in this case, it would be reasonable to conclude that if the applicant was "grossly unfit for the Army" at the time of his psychiatric examination in conjunction with the discharge process, and if he had a history of marked social inadaptability prior to and during his tour in the military, he should never have been granted a moral waiver for the purposes of being inducted into the Army.

8.  The evidence clearly shows the applicant already had a problem with alcohol, despite living on an Indian reservation where tribal law made it illegal to use alcohol. By the applicant's own admission, when he entered the Army, alcoholic beverages were readily available and he sunk further and further into his world of abusing alcohol.  He sunk further and further into the world of alcoholism.

9.  The applicant adds that throughout his time in the Army, he experienced numerous courts-marital and they all stemmed from his abuse of alcohol.  He would leave the Army posts and stay away because alcohol mattered more to him than anything else.  It never fazed him one bit about all the trouble he would be in with the Army, including all the time he would spend in the stockade.  Instead, he would leave again and again, knowing all the while he would be facing more of the same – time in the stockade.  He never once took time to try and understand why he continued this behavior and in the end it eventually took its toll on every aspect of his life.

10.  There is no evidence the applicant either asked for or was provided counseling or treatment for the intemperate use of alcohol during the time he served on active duty.  The applicant now admits all his absences from the military were due to his alcoholism; however, none of the courts-martial orders nor the Article 15, make mention of his alcoholism.  It appears that he was not provided counseling or treatment for his alcoholism while he was in the Army largely because he did not recognize he was an alcoholic and he did not know enough about alcoholism to ask for help.  It also appears that there was a certain amount of pride in not admitting he was doing wrong.  After he received treatment for his alcoholic problem, post-service, he learned to accept and admit his wrongs.  He states it is not easy, but it tells him that this is the way it must be.

11.  In view of the foregoing, as a matter of equity and compassion, the applicant should receive an upgrade of his undesirable discharge, with his service characterized as under other than honorable conditions, to a general, under honorable conditions discharge.

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading the applicant's undesirable discharge to a general, under honorable conditions, discharge




       ______x________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002364



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ABCMR Record of Proceedings (cont)                                         AR20080002364



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