IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090007849 


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 request, in effect, reconsideration of his previous request that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant defers to counsel in regard to statements in support of his request. 

3.  The applicant provides no additional documentation in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, in the form of a supplemental statement, supports the applicant's request.

2.  Counsel states that the method of assigning probative weight to each element of the applicant’s discharge should be reviewed and reconsidered.  He states that the “fact pattern” of the applicant’s case should be considered as if his discharge had occurred today.  He states that the applicant enlisted in the Army with a “buddy” to go to airborne school and when this choice became medically unfeasible, he was not returned to civilian status to take his chances with the draft, rather he was sent to train for a military occupational specialty as a supply clerk.  He states that one cannot help but to gain a sense of disappointment that the applicant must have experienced not to be able to go to airborne school; 



however, the applicant went on to complete his training as a supply clerk and continue to soldier on behalf of his country in a time of war.  He states that if there was a chronic, innate disorder present in the applicant’s nature, surely it would have manifested at this juncture.  

3.  Counsel contends that the inter-current cause of Vietnam and the resulting Post Traumatic Stress Disorder (PTSD) is a better source of the applicant’s post Vietnam absent without leave (AWOL) incident.  He states that while there were blemishes in the applicant’s military record, they consisted of two nonjudicial punishments (NJPs) for minor military offenses.  Counsel requests that the Board accept the two NJPs and minor incidents and that they not be rendered as a precursor to an inevitable failure as many veterans with honorable separations have one or more NJPs in their record.  Counsel states that the presence of NJPs alone is not grounds to decide a discharge status in and of itself and that this type of reasoning is unfair and extremely prejudicial to the weighing of evidence in its own context.  He states that this reasoning further trivializes all additional positive evidence to include his diagnosis of PTSD due to his Vietnam experience.  Counsel requests that the Board use its power of considering current mitigating circumstances to grant evenhanded justice in this case since the applicant’s chain of command endorsed his separation with a general discharge.  He states that the recommendation offered by the individual that knew the applicant best should be given extra consideration.  Counsel concludes by stating that in light of current practices, the applicant would have been given psychological counseling and a chance to redeem his service record rather than being court-martialed.
	
4.  Counsel provides no additional documentation in support of the applicant request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070018387, on 8 May 2008.

2.  On 27 August 1968, the applicant enlisted in the Regular Army in Detroit, Michigan, for 3 year, at age 18, in the pay grade of E-1, to attend training under the “Buddy Basic Airborne Plan.”  After being medically disqualified for airborne training, he successfully completed his training as a supply clerk.  

3.  On 9 April 1969, NJP was imposed against the applicant for being absent from formation on 8 April 1969.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

4.  The applicant was transferred to Vietnam on 9 May 1969.  While in Vietnam, NJP was imposed against him on 13 August 1969 for being derelict in the performance of his duties by sleeping while on night duty.  His punishment consisted of a reduction in rank and a forfeiture of pay.

5.  On 8 May 1970, the applicant returned to the Continental United States and on 22 June 1970, he submitted a request for a reduced term of enlistment from 3 years to 2 years, based on his physical disqualification for airborne training.  His request was approved on 20 July 1970.  The applicant’s expiration term of service was adjusted to 26 August 1970.

6.  On 18 August 1970, the applicant was convicted, pursuant to his pleas, by a special court-martial of three specifications of failure to go at the time prescribed to his appointed place of duty and of one specification of being AWOL from 8 July until 5 August 1970.  He was sentenced to confinement at hard labor, a reduction in pay grade and a forfeiture of pay.

7.  The applicant underwent a mental status evaluation on 4 September 1970 and during the evaluation, the applicant admitted to abuse of drugs since age 17. According to the applicant, he used lysergic acid diethylamide (LSD) and methamphetamine (speed) hundreds of times in addition to using heroin, hashish, marijuana, opium, amphetamines, barbiturates, darvon, asthamador, sniffing glue and sniffing carbora spot remover.  During the evaluation the applicant stated that he planned to continue using acid, grass, hash and a little smack now and then.  He stated that he “just dig the high-the colors and all.”  He was diagnosed with a character and personality disorder, manifested by chronic drug abuse.  The psychiatrist noted that the applicant’s condition was not incurred in the line of duty; that his condition existed prior to service (EPTS); and that he had no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels.  The psychiatrist stated that his lack of usefulness to the military was not amenable to hospitalization, treatment, disciplinary action, training, or reclassification to another type of duty; and that further rehabilitative measures in the military setting would not be productive.

8.  During the mental status evaluation, the psychiatrist determined that the applicant was mentally responsible both to distinguish right from wrong and to adhere to the right; and that he had the mental capacity to understand and participate in board proceedings.  The psychiatrist cleared the applicant for any administrative action deemed appropriate by his command and he recommended administrative separation from the service, as he was a total liability to the military and a hazard to its mission, himself and others, due to his chronic abuse of drugs.

9.  The applicant was notified on 25 September 1970 that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-212, for unfitness.  His commander cited a propensity for AWOL and his admitted abuse of drugs as the basis for his recommendation for discharge.  His commander stated that he was recommending the issuance of an undesirable discharge.  

10.  The applicant acknowledged receipt of the notification on 29 September 1970.  He also consulted with counsel, acknowledged he understood the effects of an undesirable discharge and elected not to submit a statement in his own behalf.

11.  On 30 September 1970, the applicant's battalion commander recommended that the applicant be furnished a general discharge and on 6 October 1970, the acting Staff Judge Advocate (SJA) concurred with the recommendation for discharge under the provisions of Army Regulation 635-212, for unfitness; however, he nonconcurred with the recommendation for the issuance of a general discharge.  The SJA recommended the issuance of an undesirable discharge.

12.  On 12 October 1970, the Commanding General (CG) approved the recommendation for discharge under the provisions of Army Regulation 635-212, for unfitness and he directed the issuance of an undesirable discharge.  Accordingly, on 15 October 1970, the applicant was discharged, under the provisions of Army Regulation 635-212, for unfitness, due to frequent involvement in incidences of a discreditable nature with the military or civilian authorities.  He had completed 1 year, 10 months, and 21 days of total active service and he had approximately 88 days of lost time due to being AWOL and in confinement.  He was furnished an Undesirable Discharge Certificate.

13.  On 4 July 1984, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge to an honorable discharge.  On 7 March 1985, the ADRB denied his petition to upgrade his discharge.

14.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Paragraph 3-7 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.  

16.  Paragraph 3-7 also 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 undesirable discharge should be upgraded to an honorable discharge.  Counsel supports the applicant’s request and contends that his case should be considered as if his discharge had occurred today.

2.  The applicant’s contentions have been noted.  However, there is no basis for upgrading his discharge.  His records show that he had NJP imposed against him on 9 April 1969 for being absent from formation.  This incident occurred prior to his transfer to Vietnam on 9 May 1969.  

3.  His records show that while he was in Vietnam he had NJP imposed against him for being derelict in the performance of his duties and once he returned from Vietnam, he went AWOL after he submitted a request for a reduced term of enlistment and prior to having his request approved.  After having his request approved he was convicted by a special court-martial of three specifications of 
failure to go to his appointed place of duty and one specification of being AWOL.  His records show that he had approximately 88 days of lost time due to AWOL and confinement.

4.  Additionally, during his mental status evaluation, the applicant admitted to abuse of drugs since age 17.  He stated that he used LSD and speed hundreds of times.  He also admitted to using heroin, hashish, marijuana, opium, amphetamines, barbiturates, darvon, asthamador, sniffing glue and sniffing carbora spot remover and he asserted that he planned to continue using acid, grass, hash and a little smack “now and then.”  

5.  There is no evidence in the available records that shows the applicant was ever diagnosed with PTSD while he was in the Army.  He was diagnosed with a character and personality disorder, manifested by chronic drug abuse.  The psychiatrist noted that his condition was not incurred in the line of duty.  His condition existed prior to service and he had no mental disease or condition sufficient to warrant disposition through medical or psychiatric channels.  

6.  Counsel’s contentions regarding the recommendation made by the applicant’s battalion commander that he be furnished a general discharge has been noted.  However, the commanding general was the approval authority for the recommendation for discharge and after considering the recommendations regarding the applicant’s discharge, he determined that an undesirable discharge was appropriate.  

7.  There is no evidence of error or injustice made in the applicant’s discharge process and the fact that he was medically disqualified for training under the “Buddy Basic Airborne Plan” is not a sufficient justification for granting the requested relief.  The applicant and his counsel should note that if he were being discharged for the same acts of misconduct under today’s standards, he would have been discharged under other than honorable conditions, or if he were to be discharged as a result of a general court-martial or a special court-martial conviction, he may have received a punitive discharge.  Considering all the facts of this case, it appears that his undesirable discharge appropriately characterizes his record of service.

8.  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.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070018387, dated 8 May 2008.



      _______ _   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)                                         AR20090007849



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ABCMR Record of Proceedings (cont)                                         AR20090007849



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