IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090012586 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that while he was in the military he was beaten by a correctional officer, humiliated by a drill sergeant, and forced to inhale gas because his gas mask did not properly seal while at Fort Lewis, WA.  He states that while he was at Fort Ord. CA., he was assaulted by a sergeant while the sergeant's friends stood by.  He was afraid the sergeant would do it again, so he went absent without leave (AWOL).  He states that his life was threatened after he told the reenlistment board that he suffered from depression.  He states that he is submitting documents from his psychiatrist who refutes the willful misconduct theory.  He also states, in effect, that he explained to the enlistment board that he was involved in an automobile accident and that he suffered from posterior neck pain but they enlisted him anyway.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Report of Separation for Active Duty), an undated self-authored statement, and two memoranda from the Veterans Affairs, Psychiatry/Mental Health, Long Beach CA, Staff Psychiatrists, dated 8 January 2004 and 25 March 2005.






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 Regular Army (RA) on 2 November 1970.

3.  On 15 March 1971 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 12 and 13 March 1971.

4.  On 7 April 1971 the applicant was punished under Article 15 of the UCMJ for being AWOL from 16 March to 1 April 1971.

5.  On 23 April 1971 the applicant was convicted by a special court-martial for being AWOL from 9 April to 12 April 1971.  

6.  On 26 April 1971, a psychiatrist (major), at the U.S. Army Medical Department Activity (MEDDAC), Fort Ord, evaluated the applicant based on a referral from this unit commander.  The psychiatrist indicated that clinically, the applicant's behavior was characterized by indecisiveness, unpredictability, helplessness, depression, and withdrawal.  He also stated that this symptomatology was complicated by the applicant's moderate drug use to include marijuana, barbiturates, and the psychedelics LSD and mescaline.  The psychiatrist indicated that throughout the applicant's tour of service, his inability to deal with the military environment had been growing more marked.  He indicated that the applicant had exhibited symptoms of depression and withdrawal in addition to demonstrating lack of judgment and impulse control.  Testing reflected significant dismay and depression experienced by the applicant who lacked the emotional and characterological mechanisms to cope with a threatening and hostile environment.  He further indicated that the applicant was and is mentally responsible, able to distinguish right from wrong, and had the mental capacity to 

understand and participate in board proceedings.  A marked degree of confusion of thinking was also revealed as well as severe anxiety.

7.  The psychiatrist recommended that the applicant be separated as expeditiously as possible.  The psychiatrist concluded by stating that although 
the applicant's testing indicated a borderline condition, there was at present no evidence of psychoses sufficient to warrant a medical disposition in accordance with Army regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as outlined in Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, section XV, paragraph 3-30-32.  The examiner granted psychiatric clearance for any administrative or disciplinary action deemed appropriate to the applicant's case by his command.  He was diagnosed with a schizoid personality with features of emotional instability.

8.  On 7 June 1971, the applicant's company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), and that he be required to appear before a board of officers to determine whether he should be discharged before the expiration of his term of service.  The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with military authorities.

9.  On 23 June 1971, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was submitting statements in his own behalf (but no statement is available) and that he did not waive representation by counsel.  The applicant acknowledged that as the result of issuance of a discharge under other than honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

10.  On 24 June 1971, the separation authority approved the recommendation for elimination for unfitness, and directed the applicant be discharged under other than honorable conditions under the provisions of Army Regulation 635-212 for 
unfitness, reduced to the lowest enlisted grade, and issued an Undesirable Discharge Certificate.

11.  On 2 July 1971 the applicant was discharged with an Undesirable Discharge Certificate.  He had completed 7 months and 11 days of active military service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 20 days of lost time.

12.  On 22 April 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

13.  On 24 June 1977, the applicant was informed that under the “DOD Special Discharge Review Program (SDRP)” his application had been examined and that after reviewing the findings and conclusion of the ADRB, the Secretary of the Army directed that his undesirable discharge, characterized as under other honorable conditions be upgraded to a general, under honorable conditions discharge, effective 22 May 1977.  As a result of this upgrade, his original DD Form 214 was voided and a new DD Form 214 was issued.  The new DD Form 214 reflected that the applicant had been discharged; however, item 9c (Authority and Reason) for discharge does not contain an entry and item 9c (Character of Service) reflected under honorable conditions.

14.  In September 1978 the applicant was notified that his previous upgrading of his discharge had been “re-reviewed by the ADRB” as required by Public Law 95-126.  As a result of that review, the applicant was informed that the ADRB determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review and, as such, his upgraded discharge under the DOD SDRP was not affirmed.  He was provided a DD Form 215 reflecting the appropriate change to his military record.  The applicant was also informed that the DD Form 215 in no way changed or modified the upgraded discharge he previously received, but because of the new law, he might not be able to use that discharge to qualify for benefits under the VA.

15.  In 2005 the applicant submitted an application to the ABCMR requesting that his general discharge be affirmed.  On 27 January 2005 the Board disapproved his request.

16.  The applicant submitted a copy of his psychiatry note from the Chief, Mood Disorders Clinic, Long Beach VA Health Care System, dated 8 January 2004, in which he states, in pertinent part, that the applicant incurred significant trauma while in the military due to beatings, threats, and confinement.  The Chief also 
stated that as a result of the incurred trauma the applicant has suffered from depression, years of substance abuse, and low self-esteem which has interfered with his ability to obtain employment.  He further states that the applicant denied any problems with drugs, alcohol, or with the law until after these experiences.  The Chief concluded by stating, in pertinent part, that while it was impossible to evaluate all the aspects of the effects of the applicant's adverse experiences in the military, it appears they contributed to some of his subsequent depression and inability to function.

17.  The applicant also submitted a copy of the psychiatry notes from the Chief, Mood Disorders Clinic, Long Beach VA Health Care System, dated 25 March 2005, which was addressed to this Board.

18.  Public Law 95-126 provided, in pertinent part, for a “Relook Program.”  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure 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.

20.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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.


DISCUSSION AND CONCLUSIONS:

1.  A review of the applicant’s record of service shows that he received three Article 15s and one special court-martial in less than 1 year of his 3-year enlistment commitment.  His overall record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a fully honorable discharge.

2.  The applicant's record was reviewed and upgraded by the DOD SDRP to a general, under honorable conditions discharge.  An updated copy of his DD Form 214 was prepared and issued.  However, the ADRB did not affirm the applicant's discharge upgrade under the provisions of Public Law 95-126.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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)                                         AR20090012586



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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