IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100028362 


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 honorable.

2.  The applicant states:

* he had a mental health condition caused by anxiety and his active duty in Vietnam
* he has a prior honorable discharge
* he was treated for anxiety and a passive dependent personality from October 1968 to June 1969  

3.  The applicant provides:

* service medical records
* DD Forms 214 (Report of Transfer or Discharge) for the periods ending 28 January 1969 and 10 January 1970 

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.  He enlisted in the Regular Army on 3 April 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty 62A (engineer equipment assistant).  On 28 January 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 29 January 1969 for a period of 3 years.  He arrived in Vietnam on 23 April 1969.      

3.  On 19 June 1969, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order.

4.  On 21 October 1969, he underwent a psychiatric evaluation and was diagnosed with an emotionally unstable personality, chronic, severe, manifested by impulsivity, poor judgment, and low stress tolerance.  The psychiatrist found the diagnosis represented a character and behavior disorder within the meaning of "TB Med 15," Army Regulation 40-401, and Army Regulation 635-212, and there was no psychiatric disease or defect which warranted disposition through medical channels.  The psychiatrist stated the applicant was not mentally ill and was cleared for action deemed appropriate by his command.  

5.  On 23 October 1969, charges were preferred against the applicant for attempted murder of a staff sergeant by causing the detonation of a M112 explosive near the staff sergeant, willful damage of military property by detonating an explosive charge near a wood frame hut, and committing an assault upon a staff sergeant by causing the detonation of a dangerous weapon near him.   

6.  On 17 November 1969, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated in his request he understood he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  On 24 November 1969, he underwent a sanity board evaluation and was diagnosed with an emotional instability, chronic, moderate manifested by immature behavior, dependence needs, and feelings of inferiority.  The psychiatrist found the applicant met the retention standards prescribed in chapter 3, Army Regulation 40-501 and there was no psychiatric disease or defect which warranted disposition through medical channels.  He was psychiatrically cleared for any administrative or judicial action deemed appropriate by his command. 

8.  On 2 January 1970, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

9.  He departed Vietnam on 7 January 1970.

10.  He was separated with an undesirable discharge on 10 January 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 1 year, 9 months, and 8 days of total active service.  

11.  He provided service medical records, dated between May and August 1969, which show he was treated for a suicide attempt, depression, anxiety, and headaches.

12.  On 30 September 1971, the Army Discharge Review Board denied his request for an honorable discharge.

13.  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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

14.  Army Regulation 635-200, 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  He contends he had a mental health condition and he provided service medical records which show he was treated for among other conditions anxiety and depression.  However, medical documentation shows he underwent a psychiatric evaluation and a sanity board prior to discharge and was diagnosed with emotional instability.  In addition, the psychiatrists found that he was not mentally ill, there was no psychiatric disease or defect which warranted disposition through medical channels, and he was psychiatrically cleared for any administrative or judicial action deemed appropriate by his chain of command. 

2.   His record of service during his last enlistment included one NJP and serious offenses (attempted murder) for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.







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)                                         AR20100028362



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ABCMR Record of Proceedings (cont)                                         AR20100028362



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