IN THE CASE OF:	

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080002202 


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 be upgraded and the reason for his discharge be changed to a medical discharge.

2.  The applicant states, in effect, that he should have been given a medical discharge and not an undesirable discharge.  He adds that he feels he was mentally impaired at the time of his discharge.

3. In support of his request, the applicant submitted page 35 of a document titled, "Progress Note," printed from the Portland, Oregon, Veterans Administration Center's VISTA Electronic Medical Documentation System.

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 military records show he enlisted in the Regular Army, in pay grade E-1, with his mother's consent, on 19 February 1968.  He underwent basic combat training at Fort Lewis, Washington, and successfully completed advanced individual training at Fort Ord, California.  On completion of all training, he was awarded the military occupational specialty, 36K, Field Wireman.

3.  Following completion of his training, he was assigned to Battery C, 2d Battalion, 28th Field Artillery, in Germany, as his first duty station.

4.  The applicant was promoted to pay grade E-3 on 23 October 1968, and the record shows he was honorably discharged for the purpose of immediately reenlisting on 25 October 1968.  He was promoted to pay grade E-4 on 24 February 1969.

5.  On 1 August 1969, the applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit at 0001 hours, 31 July 1969 and remaining so absent until 0030 hours, on the same date.  His punishment included reduction to pay grade E-3, restriction to the battery area for 14 days, and extra duty for 14 days.  The applicant did not appeal the punishment.

6.  The evidence shows the applicant was again promoted to pay grade E-4 on 1 April 1970.  The applicant's record documents that this would be the highest pay grade he would hold on active duty.  The record contains no documentary evidence of acts of valor, achievement, or service warranting special recognition.

7.  The applicant was again honorably discharged on 14 March 1970 for the purpose of immediate reenlistment on 15 March 1970.

8.  Item 17 (Physical Status), of the applicant's DA Form 20, Enlisted Qualification Record, shows he was given a 111111 – Code A physical profile during his last recorded physical examination on 19 February 1968.  The applicant last reviewed his records and prompted no question about this physical profile on 19 May 1970.

9.  On 3 June 1970, the applicant departed from his duty station in Germany en route to Vietnam.  He was declared to be absent without leave on 24 June 1970 and was dropped from the rolls of the US Army Overseas Replacement Station, Fort Lewis, Washington, according to established regulations and procedures.

10.  On 1 July 1975, the applicant was apprehended by civilian law enforcement officials in Portland, Oregon.  He was returned to military control on the same date.

11.  On 1 July 1975, charges were preferred against the applicant for absenting himself without leave on 24 June 1970 and remaining so absent until 1 July 1975.

12.  All the applicant's separation "packet" is not available in his service record; however, the applicant's service record does contains sufficient documents, and a completed DD Form 214, Report of Separation from Active Duty, to enable the processing of this case.

13.  On 11 July 1975, the applicant voluntarily requested discharge for the good of the service under Army Regulation 635-200, Chapter 10.  In his request, he stated, he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  The applicant stated he was making the request of his own free will, had not been subjected to any coercion whatsoever by any person, and that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

14.  In his request, the applicant also stated that prior to requesting discharge for the good of the service, in lieu of trial by court-martial, he was afforded the opportunity to consult with appointed counsel for consultation.  The applicant stated, in effect, he had been fully advised of the nature of his rights under the UCMJ and he understood that he could be discharged under conditions which were other than honorable and furnished an undesirable discharge certificate.  He stated he had been advised and understood the possible effects of an undesirable discharge and that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits administered by the Department of Veterans Affairs and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He added that he also understood that he could expect to encounter substantial prejudice in civilian life because of the undesirable discharge and that there was no automatic upgrading or review of his discharge by any Government agency.

15.  The applicant submitted a statement in his own behalf.  In his statement, he stated, in part, he thought he wanted to go to Vietnam because of what people were telling him and how good it was there.  Then, after he went home on leave he had a lot of time to think about it.  After he had thought about it, he knew he didn't want to kill anyone.  This is the reason he went absent without leave.  He stated, in effect, that all the units he served with gave him "excellent" conduct ratings.  When he was arrested, he had all his records with him.  He felt it would be a lot better to discharge him rather than to try and retrain him.  He also had reservations about his ability to readjust to military life after he had been gone so long.  He summarized by stating that some people are right for the Army and some are not.

16.  In an interview with the Commander, Personnel Control Facility, Fort Lewis, the applicant reported that he had volunteered for service in Vietnam but had misgivings about his ability to kill another human being.  The Commander opined that the applicant seemed sincere and he did not feel that incarceration would satisfy justice in this case.  He recommended the applicant be discharged and issued an undesirable discharge certificate.

17.  On 28 July 1975, the approving authority, a major general, approved the applicant's request for discharge for the good of the service, in lieu of trial by court-martial.  He considered the applicant had poor potential for rehabilitation and that punitive discharge and confinement were not indicated by the interests of justice and further expenditure of funds and resources to punish the offender were not considered justified.  He directed the applicant be issued an undesirable discharge certificate and that he be reduced to the lowest enlisted pay grade.

18. The applicant was reduced to the lowest enlisted rank and pay grade, Private, E-1, by Special Orders Number 210, Headquarters, 9th Infantry Division and Fort Lewis, dated 29 July 1975.

19.  The applicant was discharged, in pay grade E-1, with an undesirable discharge, with the characterization of his service described as, "Under Other than Honorable Conditions," on 5 August 1975, under the provisions of Army Regulation 635-200, Chapter 10.  The applicant was given an SPD (Separation Program Designator) of "KFS," Conduct Triable by Court-Martial.  On the date of the applicant's discharge, he had completed a total of 2 years, 5 months, and 16 days active military service, and 1819 days lost under Title 10, US Code 972.

20.  There is no evidence 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.

21.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service, in lieu of trial by court-martial, at any time after the charges had been preferred.  An undesirable discharge, with their service characterized as under other than honorable conditions, was normally considered appropriate at the time of the applicant's discharge.

22.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

23.  On or after 18 January 2007, the applicant's medical and dental records were mailed to the Department of Veterans Affairs Regional Office, Portland, at the applicant's request; therefore, his medical records, and in particular, his separation physical, are not available for the Board's review.

DISCUSSION AND CONCLUSIONS:

1.  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.  The applicant has failed to submit evidence that would satisfy this requirement. 

2.  The evidence shows that the applicant was promoted to pay grade E-4, he was reduced for a violation of the UCMJ, and he regained his lost promotion.  This action in and of itself coupled with his statement that he earned "excellent" conduct ratings is not indicative of a Soldier who was mentally impaired.  In review of the only NJP the applicant received and for which he was reduced, it appears he did nothing more than missed bed check; nonetheless, he was punished and did not appeal the punishment.

3.  The evidence is clear, the applicant volunteered to go to Vietnam to experience what others had related to him about service there; but, when he received orders, he had second thoughts about service in Vietnam and misgivings about his ability to kill another human being.  Rather than to seek help through his command or through other administrative channels to get a change to his orders, he decided not to follow through on his obligation and further decided that absenting himself without leave was the solution to his problem.  He remained absent without leave 
from 24 June 1970 through 30 June 1975, which is a serious violation of the UCMJ and which could have earned him, if he were court-martialed, a bad conduct or dishonorable discharge.

4.  The available evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

5.  The available evidence indicates that all requirements of law and regulation were met and it is believed that the rights of the applicant were fully protected throughout the separation process.  While all documents related to his discharge are not available, in the absence of any evidence to the contrary, Government regularity in the discharge process is presumed.

6.  The applicant's records show he had a physical profile of 111111 – Code A, during his last recorded physical examination.  There is no evidence in his service record, and the applicant provided none to show his physical profile and code were changed before he was discharged from the Army.

7.  From the evidence submitted by the applicant, it appears he did not undergo a mental status evaluation until long after his discharge from the Army, and from the best evidence available, this evaluation took place around February 2004.  In the "Progress Note" that was submitted by the applicant, which was taken from the Portland Veterans Administration Medical Center's VISTA Electronic Medical Documentation System, it appears the applicant experienced perhaps an addiction to alcohol post-service, in view of the comment that appears in the first line of the narrative, ". . . and sober for the last 16 years."

8.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to either a general, under honorable conditions, discharge or to a fully honorable discharge.  There is also no basis to change the reason for the applicant's discharge to, "for medical reasons."







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x__ __  ____x___  ___x___  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.



      __________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)                                         AR20080002202



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ABCMR Record of Proceedings (cont)                                         AR20080002202


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