IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090015227 


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, upgrade of his undesirable discharge.

2.  The applicant states that he became a heroin addict while serving in Vietnam. He adds that he went absent without leave (AWOL) for over 30 days upon his return to the United States.  After realizing he made a mistake he turned himself in at Fort Meade, MD.  He adds that he has had to live with the guilt of his decision he made 39 years ago.  He concludes that he needs help from the Department of Veterans Affairs (DVA) to get counseling with people who have suffered like himself.

3.  The applicant provides a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), five supporting statements, and medical records.

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 record shows he was inducted into the Army of the United States on 29 September 1969.  He was discharged on 2 October 1969 for the purpose of enlistment in the Regular Army (RA).  On 3 October 1969 he enlisted for 3 years.  He served in Vietnam from 21 April 1970 to 28 March 1971.

3.  On 15 January 1971, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of reduction to private (PV2)/E2.

4.  On 3 August 1971, NJP was imposed against the applicant for being AWOL from 13 July 1971 to 2 August 1971.  His punishment consisted of reduction to private (PV1)/E1 (suspended for 120 days), forfeiture of $71.00 pay per month for 2 months (suspended for 120 days), and 45 days of extra duty.  On 13 August 1971, the suspended portion of the applicant's Article 15 was vacated.

5.  On 4 October 1971, charges were preferred against the applicant for being AWOL from 11 August 1971 to 27 September 1971.  The Transmittal of Court-Martial Charges sheet lists four Article 15s.  However, copies of all the Article 15s were not contained in the applicant's record and there is no documentation to show that he was court-martialed for the preferred charges.

6.  On 27 October 1971, the applicant underwent a psychiatric evaluation by a psychiatrist in the Medical Corps.  The psychiatrist diagnosed the applicant with passive aggressive personality disorder.  The psychiatrist noted that the applicant had a history of civilian arrests, trouble in school, and inability to hold a civilian job for any length of time.  He stated that the applicant admitted to multiple drug usage while in Vietnam and was in the process of obtaining a divorce from his wife.  He offered that the applicant was previously psychiatrically evaluated for discharge while in Vietnam and was seen by a civilian psychiatrist.  The applicant was psychiatrically cleared for administrative action deemed appropriate by the command.

7.  On 18 November 1971, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements in his behalf.
8.  The applicant also acknowledged that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions.

9.  On 19 November 1971, the defense counsel stated that the applicant was diagnosed in Vietnam with a character and behavior disorder and a civilian psychiatric report confirmed the diagnosis.  Therefore, the defense counsel requested that the applicant receive a general, under honorable conditions discharge.

10.  On 3 December 1971, the unit commander notified the applicant of the proposed discharge action for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability).

11.  On 17 December 1971, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-212 with an Undesirable Discharge Certificate.

12.  The applicant's DD Form 214 shows that he was discharged under conditions other than honorable on 17 December 1971 and issued an Undesirable Discharge Certificate.  The reason and authority for discharge was listed as Army Regulation 635-212, Separation Program Number (SPN) 386 (an established pattern for shirking).  The applicant completed 2 years and 13 days of total active service with 66 days lost time.

13.  On 9 June 1975, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB noted that on 22 October 1970 the applicant was diagnosed with a character and behavior disorder and based on the requirements of Army Regulation 635-212, as stated by his defense counsel; he should have received a General Discharge Certificate.  The ADRB further stated a psychiatric report by a civilian and a psychiatric evaluation conducted on 26 October 1971 required that the applicant receive a general discharge.  Additionally, the ADRB listed on their board brief that the applicant was charged with AWOL, but the board did not indicate that he was court-martialed for the offense.

14.  The five supporting statements submitted by the applicant speak highly of the applicant's honesty and dependability.  Several of the authors offered that the applicant made a mistake when he was younger and has since paid for that mistake.  The authors state that the applicant is currently going through hard times and is in need of assistance from the DVA.  They believe that the applicant is deserving of a discharge upgrade.

15.  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.

16.  Paragraph 6b of the same regulation provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

17.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel.  It was revised on 1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrade of discharges based on personality disorders. 

18.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the 
presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

2.  The applicant provided five supporting statements attesting to his honesty and dedication.  They offer that the applicant's discharge should be upgraded for DVA purposes.  Unfortunately, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

3.  It appears that based on the applicant being diagnosed as having a passive-aggressive personality disorder, he could have been considered for a discharge for "unsuitability" vice "unfitness" and his discharge would have been upgraded to fully honorable under the criteria specified in the Brotzman/Nelson memoranda.

4.  However, the commander elected to separate the applicant for "an established pattern for shirking" which clearly does not meet the standards	 for a fully honorable discharge.  In spite of this, the evidence of record shows that the applicant was diagnosed with an "aggressive personality disorder" and although not eligible for an honorable discharge, in the interest of equity it would be appropriate to upgrade his discharge to general, under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board noted that the applicant was an admitted heroin addict while in Vietnam performing duties as an airplane repairman.  Through his willful misconduct he put the lives of countless fellow Soldiers at risk.  

2.  The applicant was separated for unfitness due to an established pattern for shirking, which included 66 days of lost time.  He was not separated for unsuitability.  There is no evidence that his character and behavior disorder rendered him unable to understand that his drug use and shirking was unacceptable military behavior.  Therefore, he was properly discharged with an appropriate characterization of his service of undesirable and the evidence presented was insufficient to warrant the requested relief.




      __________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)                                         AR20090015227



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ABCMR Record of Proceedings (cont)                                         AR20090015227



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