IN THE CASE OF:	  

		BOARD DATE:	    13 May 2010

		DOCKET NUMBER:  AR20090018361


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 (UD) to a general under honorable conditions discharge (GD).

2.  The applicant states the following:

	a.  He served in the Republic of Vietnam (RVN) and received "excellent" ratings during a prior period of service,

	b.  He was advanced to specialist four (SP4)/E-4 and awarded the Purple Heart (PH) for injuries sustained in combat,

	c.  He was never ordered into a drug treatment program or offered mental health counseling although he asked for both,

	d.  He asks consideration of the fact he was going through heroin withdrawals at the time of the accident and he was under the influence of heroin when he made his statement,

	e.  The Army contributed to his heroin addiction given he purchased most of it from his platoon sergeant, and

	f.  He takes full responsibility for his actions and is truly sorry for his heroin addiction that resulted in the loss of life of two innocent people.

3.  The applicant provides the following documents:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* self-authored statement
* Department of Public Services/Veterans’ Services Division letter, dated
 6 October 2009
* four third-party character reference letters

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 record shows he enlisted in the Regular Army (RA) on 26 May 1970.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 7 February 1971, the applicant was honorably discharged, in the rank/grade of private first class (PFC)/E-3, for the purpose of immediate reenlistment.  At the time, he had completed 8 months and 12 days of active military service.

4.  On 8 February 1971, the applicant reenlisted in the RA for 3 years and remained serving on active duty.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in item 31 (Foreign Service), that he served in Germany from 13 October 1970 through
17 March 1971 and in the RVN from 9 May 1971 through 23 January 1972.  Item 33 (Appointments and Reductions) shows he was advanced to specialist four (SP4)/E-4 on 18 June 1971 and this was the highest grade he attained while serving on active duty.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).

6.  The applicant's record documents no acts of valor or significant achievement during his RVN tour of duty.  It does show he earned the following awards during his active duty service:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar
* Expert Marksmanship Qualification Badge with Rifle (M-14) Bar

7.  The applicant’s Official Military Personnel File (OMPF) contains a Standard Form (SF) 600 (Chronological Record of Medical Care) which includes an entry, dated 18 November 1970.  It shows the applicant admitted to having a problem with stealing and alleged acid flashbacks.  It also notes he was institutionalized for 10 months 4 years prior; however, the diagnosis is not listed.

8.  An SF 513 (Clinical Record-Consultation), dated 18 November 1970, in the record shows the applicant was referred to mental hygiene having received a provisional diagnosis of “immature personality R/O deeper pathology.”  It also shows the applicant requested to see a psychiatrist before enough happened to put him in jail.  There are no documents related to the mental status/psychiatric evaluation consultation requested.

9.  On 7 October 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 134 (two specifications) of the Uniform Code of Military Justice (UCMJ) by unlawfully killing two RVN citizens by negligently driving a 1/4 ton motor vehicle, thereby striking them; and unlawfully leaving the scene of the accident without rendering assistance to the two individuals who had been struck and without making his identity known.

10.  On 15 October 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.

11.  In his request for discharge, the applicant acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible 

for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UD.

12.  An SF 88 (Report of Medical Examination), dated 18 October 1971, shows the applicant was determined to be medically qualified for retention and/or separation under the provisions of Army Regulation 635-200, chapter 10.  It also shows the number “1” listed under each of his PULHES categories, including the "S" (Psychiatric) factor, and lists no disqualifying mental or physical disabilities.

13.  On 29 October 1971, a DD Form 458 was prepared preferring additional court-martial charges against the applicant for violating the following Articles of the UCMJ as indicated:

   a.  Article 134 - by wrongfully and willfully discharging an explosive device (fragmentation grenade) in a bunker approximately 20 yards from the barracks under circumstances such as to endanger human life on 26 October 1971 and

   b.  Article 92 - by violating a lawful regulation by having in his possession a fragmentation grenade.

14.  On 16 January 1972, the separation authority approved the applicant’s request for discharge and directed that he receive a UD under the provisions of Army Regulation 635-200, chapter 10.  On 23 January 1972, the applicant was discharged accordingly.

15.  The DD Form 214 issued to the applicant on 23 January 1972 confirms he was separated under the provisions of Army Regulation 635-200, chapter 10 for the good of the service-in lieu of trial by court-martial, after having completed a total of 1 year, 7 months, and 28 days of active military service.  It also confirms he served in the RVN from 9 May 1971 to 23 January 1972.

16.  On 13 April 1978 and again on 2 August 1982, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's entire military record and the issues he presented, determined his discharge was proper and equitable and voted to deny his requests for an upgrade of his discharge.

17.  The applicant provides four character reference letters who attest to his good character and that are supportive of his request for an upgrade of his discharge.  These individuals indicate the applicant currently suffers from illness and his terrible memories of war.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It identifies four numerical designations (1-4) that are used to reflect different levels of functional capacity in the following 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.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

20.  Paragraph 3-7b of the same regulation provides that a GD 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’s contentions that his UD should be upgraded to a GD based on his accomplishments performed during his initial period of active duty service and because he was never offered any drug rehabilitation or mental health counseling for his heroin addiction were carefully considered.  However, the evidence is not sufficient to support these claims.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge 

which included the unlawful killing of two RVN citizens.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's records fails to support his assertion that he was denied help for his drug problem.  To the contrary, the medical treatment records confirm he was treated for his problems and was referred for mental evaluation.  Although there is no formal record of the mental evaluation, the medical treatment records show military medical personnel were attempting to assist the applicant with his drug problems.  This appears to show his failure to stop using drugs was not the result of the Army denying him help for his drug problem, but instead was more likely his failure to respond to treatment.

4.  The applicant's record fails to show he was wounded in action or awarded the PH.  It is also void of any indication that he was cited for acts of valor during his tour of duty in the RVN.  To the contrary, the acts of misconduct that led to his discharge occurred while he was serving in the RVN and resulted in the loss of life of two RVN local nationals.  Given the gravity of the offenses that led to his discharge and his undistinguished record of service, the UD he received clearly reflects his overall record of service.  His record was not sufficiently meritorious to support the issue of a GD by the separation authority at the time of his discharge, and does not support an upgrade of his discharge at this late date. 

5.  In addition, although the applicant's post-service conduct, as presented in the supporting statements is noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge at this late date.  

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)                                         AR20090018361



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ABCMR Record of Proceedings (cont)                                         AR20090018361



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