IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100017077 


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, that his initial request for an honorable discharge be amended to show he is requesting a medical discharge.

2.  The applicant states he was having psychological problems after he left Vietnam.  He asked for help, and he was not provided any treatment.  He states the Department of Veterans Affairs (VA) has diagnosed him as having Post-Traumatic Stress Disorder (PTSD) and it has been accepted to have existed during his period of military service.  Additionally, the Board of Veterans Appeals (BVA) has determined he was insane when he committed his offenses.

3.  The applicant provides documents which he lists in a table of contents.

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 records show that he enlisted in the Regular Army on 26 June 1969, and he was awarded the military occupational specialty of wireman.  He served as a wireman in Vietnam from 7 December 1969 to 
11 November 1970, and he was promoted to pay grade E-4.  On 22 April 1970, while in Vietnam, he reenlisted.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on five occasions, as follows:

* On 16 June 1970, for being absent from his place of duty
* On 27 January 1971, for stealing a sweater and jacket from the post exchange
* On 12 April 1971, for driving a jeep in a careless manner by driving into a ditch in the motor pool
* On 16 April 1971, for disobeying a lawful order to get out of bed
* On 15 June 1971, for disobeying a lawful command to sign out when leaving the battalion guard house and for leaving the battalion area

4.  On 3 September 1971, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 25 June to 26 July 1971.  However, the applicant departed AWOL after the charges had been preferred and remained AWOL from 26 July to 23 November 1971.  Upon his return he was placed in military confinement until 27 December 1971.

5.  On 26 November 1971, while the applicant was confined in the personnel control facility, the applicant had a separation physical examination.  In that examination the applicant reported that he was experiencing "nervous trouble."  The applicant was determined to be medically qualified for retention with no limitations.

6.  On 2 December 1971, the applicant requested discharge for the good of the service in lieu of court-martial.  In that request he was advised he could be furnished an undesirable discharge (UD).

7.  The applicant's request was approved by the appropriate authority.  Accordingly, on 30 December 1971, the applicant was given a UD under the provisions of Army Regulation 635-200 (Enlisted Separations), Chapter 10.  He had completed 1 year, 2 months, and 4 days of net service this period.  He also had 187 days of lost time.

8.  On 19 May 1983, the applicant submitted a request to upgrade his discharge to the Army Discharge Review Board (ADRB).  In his request he stated that while in Vietnam he became involved with drugs and his quality of service deteriorated. He became reclusive, withdrawn and resentful of Army regulations, authority and duties.  He continued to use drugs after he returned to the United States until he decided he had to rid himself of his drug habit and decided he had to go AWOL to do so.  He went to live with his parents but he was afraid to go out of the house because of his AWOL status.  After he got over his drug habit, he turned himself in and requested discharge because he didn't think he could accept confinement.  The ADRB denied the applicant's request.

9.  On 9 November 1987, the applicant submitted a request to upgrade his discharge to this Board.  The applicant stated he had mental and medical problems after returning from Vietnam.  On 26 October 1988, this Board denied the applicant's request.

10.  In support of his application the applicant submitted a letter from a licensed practicing psychologist who stated the applicant met the definition of insanity at the time of his discharge based upon his description of symptoms and behaviors at that time and subsequent psychological evaluations and treatment.

11.  The applicant's BVA decision shows the BVA ruled that he was insane due to PTSD when he committed the various offenses that led to his discharge.  The BVA defines insanity as follows:

An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education be belongs as to lack the adaptability to make further adjustments to the social customs of the community in which he resides.  38 C.F.R. §3.354

12.  The Manual for Courts-Martial 1969 (Revised Edition), in effect at the time, paragraph 121, stated that when determining whether a Soldier is sane when he committed an offense, a Sanity Board will convene to determine the answers to the following three questions:

	a.  Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to distinguish right from wrong?

	b.  Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to adhere to the right?

	c.  Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense?

13.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet the retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Those Soldiers determined to be physically unfit are either continued on active duty, discharged with severance pay, or placed on the Retired List due to physical unfitness.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant now says that he was having psychological problems after he left Vietnam, in 1983 he painted a far different picture.  In 1983 when he applied to the ADRB he stated that his drug use reduced the quality of his service and caused him to become reclusive, withdrawn and resentful of Army regulations, authority and duties.  When he decided he had to rid himself of his drug habit he went AWOL to do so.  He went to live with his parents but he was afraid to go out of the house because of his AWOL status.  After he got over his drug habit, he turned himself in and requested a discharge because he didn't think he could accept confinement.

2.  The picture painted by the applicant in 1983 depicts a Soldier who had a drug habit, his drug use had caused him problems in the Army, he knew his drug use would ruin his life, and he took action to rid himself of his addiction.  All of the offenses for which he accepted NJP could be said to have been caused by drug use (being absent from his place of duty, stealing a sweater and jacket from the post exchange, driving a jeep in a careless manner by driving into a ditch in the motor pool, disobeying a lawful order to get out of bed, and disobeying a lawful command to sign out when leaving the battalion guard house and not to leave the battalion area).  His clear thought process was further evidenced by him avoiding people while he was AWOL and, when he turned himself in, requesting a discharge because he did not think he could accept confinement.

3.  Since the applicant was hiding when he went AWOL, he obviously knew being AWOL was wrong.  Since he made a conscious decision to go AWOL, he obviously was able to adhere to the right.  Since the applicant made the decision to request discharge since he did not want to take the chance of being confined, he obviously could cooperate intelligently in his own defense.
4.  As such, the only indication that the applicant had any mental problems was his entry on his separation physical examination that he had a nervous problem.  However, it is noted that at the time the applicant had only recently quit using drugs, was confined in the personnel control facility, and was facing court-martial charges.  It would be understandable that a person in such a situation would have a nervous problem.

5.  This presumption is supported by the fact that when the applicant reported having a nervous condition, he was not referred for a psychiatric evaluation.  

6.  Since the applicant was never determined medically disqualified, he was not referred to an MEB.  Without an MEB he could not have been referred to a PEB. Without a PEB he could not have been medically discharged.

7.  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)                                         AR20100017077



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ABCMR Record of Proceedings (cont)                                         AR20100017077


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