IN THE CASE OF:	  

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20080004528 


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 an upgrade of his discharge.

2.  The applicant states that his discharge was unjust because he was mistreated by his drill instructors during his training and was also mistreated by others in the Republic of Vietnam.  He further adds that he did not do anything wrong and attributes his mistreatment to racism. 

3.  The applicant did not provide any additional documentary evidence 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 inducted into the Army of the United States on 10 March 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13A (Field Artilleryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records also show that he served in the Republic of Vietnam from 19 October 1970 to 5 April 1971.

5.  On 3 December 1970, while in the Republic of Vietnam, the applicant was admitted to the emergency room for obvious hallucination after using lysergic acid diethylamide (LSD).  He was diagnosed with drug abuse (heroin and LSD) and was returned to duty on 7 December 1970.  The military doctor remarked on the applicant's Standard Form 502 (Clinical Record) that the applicant should return to duty with a recommendation for a general discharge.

6.  On 13 February 1971, the applicant underwent a psychiatric evaluation in the Republic of Vietnam.  The military surgeon remarked that the applicant had difficulty with hard drugs in the Republic of Vietnam and was hospitalized for drug abuse in December 1970.  He further added that the applicant also had frequent difficulties with superiors and an apathetic attitude towards his unit.  The military surgeon also stated that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  He recommended the applicant's separation under appropriate administrative regulation.

7.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged on 5 April 1971, for unfitness, under the provisions of Army Regulation 635-212 (Personnel Separations) and that he received a character of service of under other than honorable conditions.  This form further confirms that he completed 1 year and 26 days of creditable active military service.



8.  The applicant's records do not reflect any instances or indication of racism or mistreatment.  Furthermore, there is no indication in the applicant's records that shows he addressed the issue of racism with his chain of command or with any supporting channels.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

10.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

11.  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.

12.  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.  There is no evidence in the applicant's records that he was mistreated during basic training or during his service in the Republic of Vietnam.  Furthermore, there is no evidence that he encountered any racism during his military service.

3.  The applicant's records are void of the facts and circumstances that led to his discharge.  However, the applicant's records contain a copy of the narrative summary of his clinical record as well as his psychiatric evaluation, clearly indicating that he was discharged for drug abuse and possibly an established pattern of shirking.

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that 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.

5.  Based on the available record, the applicant's service 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 a general discharge or a an honorable discharge

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _   _______   ___
       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)                                         AR20080004528



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ABCMR Record of Proceedings (cont)                                         AR20080004528



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