IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100013509 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he served his country for 2 years, 10 months, and 3 days and then had one issue of bad judgment.  He states he was having emotional issues both with his time in Vietnam and his personal life.  He was later diagnosed with post-traumatic stress disorder (PTSD) by his civilian psychiatrist. He states his fiancée was getting threats from a known member of a motorcycle gang.  His sister wrote and told him his fiancée was beaten up and her life threatened if she didn't break if off with him.  He spoke to his platoon sergeant about leave but was told he didn't have enough time left in the Army to take leave.  He was given a 3-day pass but it wasn't long enough to see that his fiancée was safe.  In addition, he was trying to deal with his own mental health break down and a worsening substance abuse problem.  He was introduced to heroin while in Vietnam.  He states he searched for but never found his fiancée, and the gang member died in prison.   He states he did not know what he was doing when he signed the papers for an undesirable discharge.  He only recently understood the impact of the discharge when he made inquiries to the Department of Veterans Affairs (VA) because he can no longer pay for his civilian psychiatrist due to his unemployability. 

3.  The applicant provides copies of:

* responses by Dr. M___t to a questionnaire dated 1 May 2008
* a letter, 30 June 2008, from the Social Security Administration
* five personal references
* 11 pages from his Military Personnel Records Jacket (MPRJ)
* 22 pages from his service medical records
* 42 pages showing treatment by Dr. N_____o from 20 February 2006 to 
17 November 2009
* eight pages of lab reports including radiology
* his DD Form 214 (Report of Separation from Active Duty) with an effective date of 17 December 1974 

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 personnel records show he enlisted in the Regular Army on 30 March 1970 for 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11C (Infantry Indirect Fire Crewman).

3.  The applicant served in the Republic of Vietnam from 15 January to 
12 August 1972.

4.  On 10 March 1972, the applicant was treated for improper use of heroin not involving addiction or dependence, involvement intensity: minimum.  His rehabilitation potential was excellent.

5.  On 22 February 1973, the applicant was psychiatrically examined in the emergency room at Walson Army Hospital at Fort Dix, NJ.  He entered the emergency room after taking over 20 Librium tabs and an unknown number of nerve pills in a suicidal gesture apparently precipitated by breaking up with his girlfriend.  On examination there was no evidence of neurosis, psychosis, or recent habitual drug use.  He denied a persistent suicidal intention.  The examiner felt the applicant had a borderline personality, chronic, moderate; manifested by suicidal gesture.  The applicant was mentally responsible.  He was able, with respect to a particular act, to distinguish right from wrong, as legally prescribed, and to adhere to the right.  He had the mental capacity to understand the nature of board proceedings and to cooperate intelligently in his own defense.  The examiner found there were no mental or physical defects warranting hospitalization or medical separation.  The examiner psychiatrically cleared the applicant for any administrative action deemed appropriate by command.

6.  On 1 March 1973, the applicant departed absent without leave (AWOL).  He returned to military control on 16 December 1974.

7.  On 17 December 1974, after having been afforded the opportunity to consult with military counsel, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313.  He understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge.  

8.  The applicant understood that he would be discharged under than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he:

* would be deprived of all service benefits
* would be ineligible for all benefits administered by the VA
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* may encounter substantial prejudice in civilian life because of an undesirable discharge

9.  The applicant also understood:

* he must report to his State Director of Selective Service for alternate service within 15 days of discharge
* satisfactory completion of such service would be acknowledged by issuance of a Clemency Discharge Certificate
* such certificate would not alter his ineligibility for any benefits predicated on his military service

10.  The applicant indicated he would sign a Reaffirmation of Allegiance, a Pledge of Public Service, and accept an undesirable discharge.  In his statement to the Joint Board for Alternate Service, the applicant indicated the reason for his AWOL was he had gotten into drugs in Vietnam and couldn't make enough money in the Army to take care of his habit.

11.  The Joint Alternate Service Board established by Presidential Proclamation 4313 reviewed the applicant's official records and determined that he would be required to serve 12 months of alternate service.

12.  On 17 December 1974, the applicant reaffirmed his allegiance to the United States of America and pledged to faithfully serve 12 months alternate service.

13.  On 17 December 1974, the applicant was discharged under the provisions of Presidential Proclamation 4313.  He had completed 2 years, 10 months, and 
3 days of active service that was characterized as under other than honorable conditions.  He received an Undesirable Discharge Certificate.  He had 29 days time lost before his normal expiration of term of service and 621 days after his normal expiration of term of service.

14.  The applicant's available service medical records show no diagnosis or treatment for any type of mental health issues.  

15.  In a letter, dated 17 July 1975, the National Headquarters Selective Service System stated the applicant was terminated from enrollment in the Reconciliation Service Program and he did not complete his required period of alternate service.

16.  In a letter, dated 30 June 2008, the Social Security Administration approved the applicant's disability benefits effective May 2008.

17.  In a letter, dated 23 March 2010, the applicant's then fiancée stated the gang member forced her to leave with him.  She was young and scared so she left with him.  She stated it was a few years before she saw any of the applicant's family again.  She stated the gang member was older than her and belonged to a dangerous gang.  She did not want to involve anyone else so she left with him.

18.  In a letter, dated 17 March 2010, the applicant's sister stated he was messed up psychologically when he went AWOL.  She states he was a different person when he returned from Vietnam.  

19.  In a letter, dated 13 March 2010, the applicant's twin brother stated the applicant was not the same person when he returned from Vietnam.  He states his brother came home from Vietnam addicted to heroin and alcohol.  He was worried about his girlfriend because she had told him she was being threatened by her ex-boyfriend.
20.  In an undated letter to the VA the widow of a former technical sergeant, U.S. Air Force, stated she has been the  main person to encourage, care, and assist the applicant through all of his health issues.  She states his mental state has dramatically declined in the last 3 years and he had to retire from his job with the city due to his mental health and physical problems.

21.  In a letter, dated 18 March 2010, the applicant's friend from childhood stated he knew the applicant well before the Army and Vietnam and how changed and disturbed he was when he came home.  He also knew of the situation with the applicant's girlfriend and supports his statements concerning the situation.

22.  The medical records from Dr. N_____o first mention the applicant had a known case of bipolar disorder on 11 July 2006.  The record dated 24 May 2007 states he had a known case of schizophrenia.  The record dated 4 March 2009 states he had known problems with paranoid schizophrenia with post-traumatic syndrome after he served in Vietnam.

23.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

24.  Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for clemency discharge.  Those categories were:

* civilian fugitives who were draft evaders
* members of the military who were still AWOL
* former military members who had been discharged for desertion, AWOL or missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  (NOTE: In any event, the clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.)

25.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  It states 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.  

26.  Army Regulation 635-200 states 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 he went AWOL because his fiancée was being threatened and he had his own mental health break down and a worsening substance abuse problem.  

2.  The applicant's fiancée's statement indicated that she left with her ex-boyfriend of her own accord so as not to cause anymore problems.  The applicant himself states he never found her when he returned home and yet he remained AWOL for a little over 21 months.  Therefore, this is not considered a mitigating factor in the determination of his case.

3.  The applicant's brother, sister, and his best friend state that he was not the same when he returned from Vietnam.  However, there is no evidence in his available service medical records of any mental disorder during his period of service.  His brother stated he came home from Vietnam addicted to heroin and alcohol.   The earliest of any mention of a mental condition is contained in the civilian medical records submitted by the applicant.  This mention concerned bipolar disorder and was not made until 11 July 2006, over 31 years after he was discharged.  Therefore, there is no substantive evidence to show his misconduct was related to a mental condition.

4.  The applicant was treated once for improper use of heroin.  By his own statement to the Joint Board for Alternate Service, he indicated he went AWOL because he couldn't make enough money in the Army to take care of his habit.

5.  He contends he did not know what he was doing when he signed the papers for the undesirable discharge.  

6.  The applicant acknowledged he was aware of the consequences of his request for discharge under Presidential Proclamation 4313.  In addition, he stated he would sign a Reaffirmation of Allegiance, a Pledge of Public Service and accept an undesirable discharge.  He reaffirmed his allegiance to the United States and pledged to faithfully serve 12 months of alternate service.  Therefore, his contention is not supported by the evidence.

7.  The applicant was AWOL for a total of 650 days.  In addition, although he pledged to complete 12 months of alternate service, he failed to do so.

8.  The ABCMR does not upgrade a properly issued discharge solely for the purpose of obtaining benefits from another agency.

9.  In view of the above, there is an insufficient basis to upgrade the applicant's undesirable discharge.

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)                                         AR20100013509





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ABCMR Record of Proceedings (cont)                                         AR20100013509



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