IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090019752 


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 an upgrade of his undesirable discharge to general, under honorable conditions discharge.  He also requests a personal appearance.

2.  The applicant states:

* his absence from duty was not "unauthorized" within the meaning of Uniform Code of Military Justice (UCMJ)
* his discharging commander abused his discretion in failing to take required pre-discharge rehabilitative steps
* evidence supporting basis for discharge is insufficient and violates due process requirements
* his discharging commander abused his discretion in failing to order a mental health examination

3.  The applicant provides the following documents in support of his application:

* numerous post-service training certificates, club memberships, permits, licenses, letters of support and recommendation
* self-authored letter of explanation
* Standard Form 89 (Report of Medical History), dated 29 January 1971


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's undesirable discharge be upgraded to a general, under honorable conditions discharge.

2.  Counsel states the circumstances surrounding the applicant's discharge constituted an injustice that warrants reconsideration of his discharge and the manner in which his discharge was handled at the time violated his procedural due process rights.  Specifically:

	a.  the applicant's absence from 14 May 1970 through 17 January 1971 was not unauthorized within the meaning of UCMJ.  The record shows that his unit was both aware of his whereabouts and his mental health treatment;

	b.  the reason for discharge is not properly supported because there were no previous offenses nor was there any attempt to rehabilitate him prior to discharge given his medical condition.  The vague references to "discreditable conduct and negative attitude" are an insufficient basis for discharge.  The absent without leave (AWOL) should not be considered in discharge processing because it was in fact not bad time because the unit was aware of his location and medical treatment;

	c.  there were no "sufficiently detailed reasons" for his unfit discharge provided to medical examiners as required by Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), paragraph 8.  The Standard Form 89, item 17, has the statement, "need psychiatric help" is stricken -- a clear indication that the applicant was encouraged to provide minimal information to the medical evaluators and avoid the requirement of paragraph 8(b)(2).  The Psychiatric Evaluation Certificate and Mental Status Evaluation are both absent from the record; and

	d.  as outlined in the applicant's affidavit, the system processing of his discharge violated the procedural due process to which he is entitled.  He never met one on one with a mental health professional or a judge advocate.  The applicant was subjected to threatening comments such as "he would go to Fort Leavenworth" in an attempt to intimidate him to waive his rights.  Such a process establishes within any accused or respondent a sense of "fait accompli" as well as a disincentive to offer information that might serve as mitigation.

3.  Counsel provides a sworn statement from the applicant.



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.  A  Standard Form 89 completed on 18 December 1969, as reported by the applicant, shows he had no history of depression or excessive worry.

3.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 19 December 1969.  He completed basic combat training at Fort Bragg, NC, and proceeded to Fort Jackson, SC, to attend advanced individual training (AIT).

4.  The applicant's was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained during his military service was private (E-1).

5.  On 22 March 1970, the applicant departed his AIT unit in an AWOL status.  He was subsequently dropped from the rolls of the Army on 20 April 1970.  He voluntarily returned to military control on 12 May 1970, but he later departed AWOL again on 14 May 1970 and was dropped from the rolls on 27 June 1970.  The applicant surrendered to military authorities on 18 January 1971.  However, he again departed AWOL for a final time on 5 February 1971 and was ultimately apprehended by civil authorities and returned to military control on 10 February 1971.

6.  The applicant's records show that during his AWOL from 14 May 1970 to 27 June 1970 he was seen on a weekly basis by a civilian medical doctor in Kankakee, IL.  The record contains three letters written by the applicant's civilian physician as follows:

	a.  addressed to the applicant's commander, dated 24 June 1970, which stated the applicant came to him during his AWOL and after several weeks of evaluation was determined to be mentally unfit and required intensive psychotherapy.  He further states the applicant is suffering from "severe and acute depression neurosis and he may be suicidal risk to himself, and if pushed too far, he may even become homicidal";

	b.  addressed to the applicant's commander, dated 14 September 1970, stated the applicant is "motivated toward psychotherapy and accepted therapy very well."  He further states the applicant is under heavy medication at the present time and his anxiety has decreased to some extent.  He feels the applicant is in no condition, even at the present time, to go back to the service for it may set off a psychotic reaction.  The sooner he is discharged the better the prognosis will be"; and

	c.  written to the psychiatrist at Sheridan Army Base, dated 7 January 1971, stated the attending physician is releasing the applicant back to Fort Sheridan for evaluation and processing.  He indicates the applicant is still a "sick person and should not be abused in any way that may alter his mental status."

7.  On 20 January 1971, the applicant was evaluated by the Mental Hygiene Consultation Service which determined the following:

	a.  diagnosed as having severe chronic inadequate personality manifested by inability to deal with even the minimal stresses of adult life.  Diagnosis represents a character and behavior disorder;

	b.  the Soldier was and is mentally responsible, both to distinguish right from wrong and to adhere to the right;

	c.  in view of this individual's past record and expressed lack of motivation to continue in the military or to perform effectively, administrative  separation should be considered; and

	d.  this condition is not amenable by short-term treatment and cannot be benefitted by hospitalization; therefore, no further attempt at rehabilitation of this Soldier should be made since it is believed he is ineffectual to the service and cannot be rehabilitated to the extent where he may become a satisfactory Soldier.

8.  The record does not contain evidence of acknowledgement of the physician's correspondence by the applicant's chain of command.  However, the record contains personal phone records submitted by the applicant's mother showing 12 telephone calls made from Orland Park, IL to Columbia, SC, between 8 April 1971 and 19 May 1971.  Further, there were an additional five telephone calls to Highland Park, IL, between 2 and 15 September 1971 from Orland Park, IL.
9.  On 26 February 1971, the applicant's holding company commander recommended the applicant's discharge in accordance with paragraph 6a of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The immediate commander stated the following:

	a.  the best interest of the service will be met by elimination action because of unfitness.  These offenses result in a total of 304 days of bad time.  Psychiatric Evaluation Certificate shows that no mental conditions exist sufficient to warrant discharge through medical channels;

	b.  since his assignment to this unit, no attempts at rehabilitation have been made.  Enlisted man has been interviewed by officers of this unit and it is felt that due to his negative attitude, he should be eliminated;

	c.  his continued course of discreditable conduct outweighs consideration of discharge for character and behavior disorders only; and

	d.  recommend an undesirable discharge certificate be issued.

10.  On 15 February 1971, the applicant's parents wrote to the Special Processing Detachment at Fort Riley, KS to inform them of the circumstances involving their son's medical treatment and his attempts to contact the unit.

11.  On 9 March 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation for unfitness under Army Regulation 635-212, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case before a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.

12.  The applicant further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life in the event a general under honorable conditions discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge, under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and state law and that he may expect substantial prejudice in civilian life.

13.  The Standard Form 88, dated 29 January 1971, item 42 (Psychiatric) rated the applicant as "normal."  However, his Standard Form 89, item 15 (statement of examinee's present health in own words), shows "need psychiatric help - fair" has been lined through.

14.  On 15 March 1971, the separation authority approved the applicant's discharge, under the provisions of Army Regulation 635-212 and directed he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 24 March 1971.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 5 months and 1 day of creditable military service and had 305 days of lost time.

15.  On 16 October 1973, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

16.  The applicant provided several post-service training certificates, club memberships, permits, licenses, letters of support and recommendation which attest to his character and citizenship.  He further provides a Standard Form 89 in which he indicates he "need psychiatric help" and was ordered to line through this entry.  Finally, his sworn statement detailed the events leading to his separation.  He states he suffered a complete mental breakdown because he was overcome with fear and sadness and consumed with the thought of going home.  He left the Army and returned home in late March 1970 and received medical treatment for his severe and acute depression neurosis.  His family and physician reported his whereabouts and condition to his unit.  Upon his return to his unit, he was given a choice to separate or go to Fort Leavenworth.  He was told to fill out the paperwork and not request further mental health counseling.  He never saw defense counsel one on one, only a judge advocate in a group setting.   He goes on to state his predicament was to a great degree based on his own immaturity and inability to handle certain pressures.

17.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

18.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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.

19.  Army Regulation 635-200, paragraph 3-7b, 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.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-11 contains guidance on hearings and states that applicants do not have a right to a hearing before the ABCMR.  The regulation does indicate that personal appearance hearings may be authorized by a panel of ABCMR members if they believe it is warranted.  In addition, the Director or the ABCMR may grant a formal hearing whenever justice requires.
21.  Army Regulation 15-185, paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his discharge upgraded to honorable was carefully considered; however, there is insufficient evidence to grant relief.

2.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  The applicant's counsel contends the absence from 14 May 1970 through 17 January 1971 was not unauthorized because the chain of command knew his whereabouts and that he was receiving medical treatment.  Counsel further states the applicant was not afforded the opportunity for rehabilitation, had no prior offenses, and was improperly discharged.  Counsel contends the applicant's mental condition was not considered during his separation processing and the record is missing a Psychiatric Evaluation Certificate and Mental Status Evaluation as required in accordance with Army Regulation 635-212.  Finally, counsels states the applicant was, in effect, systemically processed out of the military using threats of incarceration.

4.  The applicant's record shows he was AWOL for a total of 305 days on three separate occasions over approximately a 15-month enlistment period.  The fact that his whereabouts were known during the period of 14 May 1970 through 17 January 1971 does not negate the fact that he left without authority and demonstrates a pattern of misconduct.

5.  In regard to the contention the applicant was not afforded rehabilitation, the discharge packet clearly indicates the applicant was not recommended for rehabilitation because of his negative attitude.

6.  The records show the applicant received a psychiatric examination after his return from AWOL on 20 January 1971 consistent with regulatory guidelines.  The Psychiatric Evaluation Certificate and Mental Status Evaluation are both contained in the record and summarily indicate the applicant is mentally responsible.

7.  The applicant states he was forced to change strike through the "need psychiatric help" entry on his report of medical examination.  There is no evidence to support this claim.

8.  Finally, absent evidence to the contrary, it is presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  It is also presumed that considering the information presented by the applicant together with the evidence of record and applicable law and regulations, the type discharge directed and the reasons therefor were appropriate.  The applicant has failed to show that his undesirable discharge was in error or unjust.

9.  The applicant's records reveal an extensive history of indiscipline, specifically three instances of AWOL in excess of 300 days.  Accordingly, his chain of command initiated separation action against him.  The applicant's discharge was in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

10.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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. 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 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)                                         AR20090019752



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ABCMR Record of Proceedings (cont)                                         AR20090019752



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