IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110001346 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to a General Discharge (GD).

2.  He states, in effect, he is seeking benefits through the Department of Veterans Affairs (VA) for the following medical conditions:

   a.  Hearing - His hearing loss was not apparent at the time because his life was consumed by none other than getting another drink and stealing to supply that habit.  Since he has become sober, his hearing loss has become more apparent and is in both of his ears.

   b.  Attention Deficit Disorder (ADD) – He was born on 11 February 1936 and his disorder began at a very young age.  He only completed 9 years of school. Unable to keep up with other classmates, he was held back in 2nd and 3rd grade.  He lived in a life of fear at home because his father would beat him.  At the age of 58, he applied for a job at the post office and had difficulty passing the tests.  It was at this time that he was diagnosed with ADD.
   
   c.  Alcoholism – He started drinking at the age of 15 which was a way of self medicating to make the pain of his childhood disappear.  He joined the U.S. Army in July 1955 and drinking became a major issue during basic combat training.  Again he felt like he did not belong so as time went on he continued to drink.  His pay enabled him to afford the alcohol which made him feel like he belonged.  As time went on alcohol was increasingly taking over his life and when he ran out of money he began stealing in order to purchase alcohol.  
   d.  Alcoholism (Continued) - He received countless nonjudicial punishments (NJP) for being drunk and disorderly.  He reached the point that he would receive so many NJPs that he would be transferred in order to avoid a court-martial.   He was arrested for possession of stolen property.  He was sent to jail and then turned over to civilian authorities and spent two years in a state penitentiary.  He was discharged from the Army while incarcerated.   After his release, he eventually ended up joining Alcoholics’ Anonymous (AA) and has been sober now for 45 years. 
   
   e.  Since continuing with AA, he now knows that his alcoholism was a medication to get him through each day.  During his period of service in the Army, there were no programs in place to help diagnose his conditions and problems.  As a result, he struggled daily.

3.  He provides:

* His discharge documents
* A Neuropsychological Evaluation
* A letter from a VA service representative  

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  


3.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he enlisted in the Regular Army on 13 July 1955 and was trained in military occupational specialty (MOS) 111.07 (Light Weapons Infantryman).  

4.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his
DD Form 214 shows that on 30 July 1958 he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations – Conviction by Civil Court).  He was furnished an Undesirable Discharge (UD) certificate and had completed a total of 2 years, 11 months, and 15 days of creditable service and had 216 days of lost time. 

5.  Item 11c (Reason and Authority) of the applicant's DD Form 214 shows the entry "284," which was his Separation Program Number (SPN).

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

7.  He provided a copy of a neuropsychological evaluation, dated 16 November 2005.  This document shows the following:

	a.  History of Present Illness:  The applicant has had longstanding difficulties with retaining what he reads and slowed motor skills, which was reportedly confirmed during a previous evaluation in 1995.  The results from the previous test were not available.

	b.  Medical History:  He reported no significant medical history and was not taking any medications at the time of the evaluation.  His family medical history is significant for unspecified mental illness and the applicant denied any psychiatric history. 

	c.  Recommendations:  The applicant should follow up with regular medical care to rule out any other organic factor impacting his cognitive functioning.  Overall, he should be commended as he has several cognitive and interpersonal strengths.  He demonstrated strengths in processing auditory information and is able to persist in the face of challenges.  

8.  A letter from his VA service representative states that after speaking in great lengths with the applicant it is obvious that he led a very troubled and abusive childhood that spewed over into his young adult life and apparently into his enlistment into the military.  Although the attached medical report from 2005 does not note his troublesome childhood, the applicant did disclose the abusive life he, his siblings, and mother endured while living with his father. 

9.  His father was apparently very abusive and when his father did come home from work, his mother would already have the children locked up upstairs in two rooms where she kept the children quiet so as not to disturb or upset the father to avoid beatings.  In addition to his home life, the applicant found it very difficult keeping up with classroom instruction which led to him being held back twice in his early years of school. 

10.  In 1955, the applicant joined the U.S. Army and his drinking became a major issue from the beginning of his service career.  This self-destructive behavior carried on throughout his tenure and led to multiple NJPs and transfers.  It is apparent that the issue was not addressed medically or psychologically, which led to an undesirable discharge.  Eventually he did get a handle on his problem through the help of AA.  His ADD was not diagnosed until he was into his fifties and it is understood that the Army is not the cause of his problem; however, when his drinking got increasingly worse during his enlistment it was only addressed with punishment.  The applicant’s UOTHC discharge should be upgraded to a GD in order to assist him with the needed medical care through the VA.

11.  Army Regulation 635-5, in effect at the time, established the proper SPN codes to assign to Soldiers separating from the Army.  Appendix I confirmed that the SPN of "284" was the appropriate code for individuals discharged for being initially convicted by civil court during current term of active military service.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided that members convicted by civil authorities would be considered for separation.  A UD was normally considered appropriate.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, 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.






DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances pertaining to his discharge are unavailable for review.  However, by his own admission, he states he was administered NJP on several occasions and was ultimately convicted by a civil court.  The applicant’s DD Form 214 shows that he accumulated a total of 216 days of lost time. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  It is apparent that his discharge was based on his conviction by civil court during his term of active duty.  Therefore, there is insufficient basis to support his request for an upgrade of his UD.

4.  The applicant's ADD, childhood difficulties, and alcoholism have been carefully considered as well as his long-term sobriety.  While these are all certainly mitigating factors, they do not warrant upgrading a properly-issued discharge.
  
5.  The applicant's desire to have his UD upgraded to a GD in order to apply for VA medical benefits is acknowledged; however, the Board does not change the character of service for the purpose of enabling former service members to obtain eligibility for benefits.  

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)                                         AR20110001346





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ABCMR Record of Proceedings (cont)                                         AR20110001346



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