IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110013137 


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 general discharge issued under the provisions of the Department of Defense (DOD), Discharge Review Program (Special) (SDRP).  He also requests that the narrative reason for discharge be changed and correction of the number of days of lost time on his separation document. 

2.  The applicant states there were extenuating circumstances surrounding his discharge that merit consideration by the Board.

	a.  He deployed to Vietnam in April 1969.  He was involved in a battle outside Tay Ninh in a small village near Fire Support Base Rawlins in June 1969 in which he unknowingly killed Vietnamese civilians.

   b.  He experienced nightmares from the battle and was unable to put the images out of his mind.  He turned to drugs, including the use of opium.

   c.  He states that his medical records from Womack Army Hospital, 
Fort Bragg, NC show he was doing fairly well in the Operation Awareness Program, which was a drug amnesty program, and he had no reason to leave.  He would not have been court-martialed; however, he was kicked out of the program when he tested positive for drugs.  He asserts he was not using drugs and the test either had a false positive or someone switched his urine test sample.

   d.  He states his DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, United States Code (USC) and Subsequent to Normal Expiration of Term of Service (ETS)) two entries indicating that he was absent without leave (AWOL) from 16 March through 12-13 April 1969 for a period of 28 days (each).  He adds that his DA Form 20, item 33 (Appointments and Reductions) contains entries for 15 March and 15 April 1969, which substantiates he was not AWOL.  He disputes the fact that he had 
952 days of time lost and offers his financial records as evidence and the fact that he spent 43 days in Womack Hospital for drug addiction.

   e.  When he returned home, he continued to use drugs and was unable to deal with the normal everyday functions of life.  He was unable to hold a job for any substantial length of time or qualify for social security.  He adds that doctors at the Department of Veterans Affairs (VA) Loma Linda Medical Center in California found he suffered from post-traumatic stress disorder.  

   f.  A letter from the Army Discharge Review Board (ADRB), dated 27 April 1978, asked him if he desired to personally appear for a formal hearing of his application.  He indicated he would represent himself at the hearing and returned the correspondence.  An ADRB letter, dated 17 May 1978, informed him his request was granted and he would be notified of the date and time of his hearing.  However, he never received information regarding the hearing and, as a result, he was unable to present evidence of his drug use and traumatic experiences.  An ADRB letter, dated 14 July 1978, notified him that his application was denied.  He adds the ADRB did not have all the evidence confirming his drug abuse, which directly related to his experiences in Vietnam.

3.  The applicant provides in support of his application:

* Two Army medical records
* DA Form 20
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* ADRB letters
* Defense Finance and Accounting Service (DFAS) records
* Social Security Statement
* VA decision and medical records

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 service 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 available documents (provided by the applicant) for the Board to conduct a fair and impartial review of this case.

3.  In support of his application, the applicant provides the following documents:

4.  His DA Form 20 that shows in:

   a.  item 11 (Enlisted, Inducted, Reenlisted, Extended, and/or Ordered to Active Duty):  he enlisted in the Regular Army on 12 February 1968 for a period of 3 years;

	b.  item 31 (Foreign Service):  Vietnam from 19 April 1969 through 23 January 1970;

	c.  item 33 (Appointments and Reductions) [in part]:

* promoted to specialist four (SP4)/pay grade E-4 on 14 January 1969
* reduced to private first class (PFC)/pay grade E-3 on 15 April 1969 (entry is lined-thru)
* promoted to SP4/E-4 on 29 November 1969 (entry is lined-thru)
* reduced to PFC/E-3 on 15 March 1969
* promoted to SP4/E-4 on 29 November 1969
* reduced to private (PVT)/E-1 on 29 September 1971
* SP4/E-4, 29 November 1969, DOD ADRB 29 September 1971 (pencil entry)

	d.  item 38 (Record of Assignments):  he was:

* dropped from the rolls (desertion) on 19 September 1970
* returned as a duty Soldier on 7 September 1971 to the Personnel Confinement Facility, Fort Lewis Washington

	e.  item 44:

* AWOL for 28 days from 16 March to 13 April 1969 (entry is lined-thru)
* AWOL for 28 days from 16 March to 12 April 1969
* AWOL for 17 days from 10 July to 26 July 1970
* Confined for 54 days from 27 July to 18 September 1970
* AWOL for 146 days from 19 September 1970 to 11 February 1971
* AWOL after ETS for 207 days from 12 February to 6 September 1971

5.  The applicant's DD Form 214 shows he was discharged under honorable conditions on 29 September 1971 in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, and the DOD SDRP.  It also shows in:

	a.  item 6c (Grade, Rate or Rank):  PVT;

	b.  item 6b (Pay Grade):  E1;

	c.  item 21 (Time Lost):  Reference item 27; and

	d.  item 27 (Remarks):  "REF ITEM 21:  952 DAYS LOST UNDER 10 USC 972 FROM 16 MAR-12 APR 69, 10 JUL 70-6 SEP 71."

6.  The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused from completing alternate service in accordance with Presidential Proclamation (PP) 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/
AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

7.  A DD Form 215, dated 20 July 1978, shows the applicant's 29 September 1971 discharge was reviewed under the provisions of Public Law 95-126 and a determination made that the characterization of service was warranted under the provisions of DOD SDRP, 4 April 1977.

8.  Public Law 95-126 provided, in pertinent part, for a "Relook Program."  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures issued under the authority of The Adjutant General of the Army.

9.  A Clinical Record Cover Sheet, dated 21 January 1971, shows the applicant was diagnosed with:

	a.  Immature personality, severe, manifested by poor adjustment to military life; poor motivation for service and impulse control; Stress:  routine military duty, Condition:  unchanged; and

	b.  Drug addition:  heroin abuse.

10.  A Narrative Summary - Clinical Record, dated 26 January 1971, shows the applicant was admitted to Ward 30, Womack Army Hospital, Fort Bragg, NC, on 18 December 1970, with approximately an 18-month history of heroin addiction.  He was discharged from the Ward, on 20 January 1971, when he left in an AWOL status.

11.  Forty-two (42) pages of DFAS pay records covering the period of the applicant's military service from 12 February 1969 to 30 September 1970.

	a.  The pay records show he received pay and allowances for pay grade E-4 from February through July 1969 and pay grade E-3 beginning 1 August 1969.

	b.  The DA Form 2139-1 (Military Pay Voucher) for the period 1-31 August 1969 shows in item 11 (Remarks):  Enlisted Member (EM) reduced to E-3 effective 15 March 1969.  It also shows:

* funds due US:   difference of E-4 (1 year service) and E-3 (1 year service) from 15 March 1969 through 31 July 1969
* funds due US:  difference in Foreign Duty Pay of E-4 and E-3 from
21 April through 31 July 1969
* EM erroneously paid as E-3 from 13 through 31 January 1969, should be paid as E-4 (1 year service) for this period
* Funds due EM:  difference in Basic Pay E-4 (1 year service) and E-3
(1 year service) from 13 through 31 January 1969
* Article 15 - a forfeiture of $68 for 2 months not deducted, due US this amount

	c.  The pay records also show he received pay and allowances for pay grade E-3 from August through November 1969 and for pay grade E-4 from December 1969 through September 1970.

	d.  The DA Form 2349 (Military Pay Voucher) for the period 1-30 September 1970 shows in item 3 (Pay Grade):  "E04" and in item 67 (Remarks) amounts due the US that are specified in items 46 - 48 (Other).

12.  The applicant's Social Security Statement, dated 26 March 2009, shows he had taxable earnings from 1967 through 1983 (except he had zero (0) earnings in 1971, 1972, 1974, and 1979) and zero (0) earnings from 1984 through 2007.

13.  A VA, Los Angeles, California, Administrative Decision, dated 24 September 1978.

	a.  It shows in the "Facts" section that the applicant requested discharge to escape trial by court-marital for being absent from 20 January to 7 September 1971.  He was afforded the opportunity of counsel on 17 September 1971 prior to being released from service.

		(1)  His discharge was upgraded on 26 May 1977 to under honorable conditions by the DOD SDRP.

		(2)	 There is no evidence of record to support drug abuse, and his separation was due to misconduct not involving drugs.

	b.  The VA found the evidence of record did not support his claim of drug usage during service and concluded that the applicant's discharge was under dishonorable conditions.

14.  A VA, Los Angeles, California, letter, dated 20 September 2010, provided the applicant information on the VA appeal process and the option of applying to the Army to request a change to the character of his discharge or correction of his records.

15. A VA Loma Linda Healthcare System, letter from Lori R. B----, Staff Psychologist, dated 28 September 2010, shows the applicant was diagnosed with Post-Traumatic Stress Disorder; Other Substance Dependence, Early Full Remission; Low back pain and Arthralgia; Problems with primary support group (strained relationship with children).

16.  Medical Record Progress Notes, recorded by Lori B----, Ph.D., document 
11 therapy sessions with the applicant during the period 13 April to 9 November 2010.  The notes show (in pertinent part) the applicant expressed feelings of guilt about his combat service in Vietnam and frustration with errors in his discharge and unsuccessful efforts to upgrade his discharge.

17.  A letter from Ms. Betty M---- (applicant's spouse), dated 18 January 2011, to Lori R. B----, notifying her that the applicant had to cancel his appointment (once again) because he was depressed.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  The individual's request for discharge will include a statement that he was not subjected to coercion with respect to his request for discharge.  The individual will also acknowledge that he was guilty of the charge(s) against him or of a lesser-included offense(s) contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

		(1)  The individual will be afforded the opportunity to consult with counsel and be advised that he might be:

* discharged under other than honorable conditions
* deprived of many or all Army benefits
* ineligible for many or all benefits administered by the VA
* deprived of his rights and benefits as a veteran under both Federal and State laws
* expected to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Discharge Certificate

       (2)  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  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 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 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the number of days of time lost, narrative reason for his discharge, and character of his service should be corrected.

2.  The evidence of record shows the applicant had time lost, as follows:

* 28 days AWOL (16 March - 12 April 1969)
* 17 days AWOL (10 July - 26 July 1970
* 54 days confinement (27 July - 18 September 1970)
* 146 days AWOL (19 September 1970 - 11 February 1971)
* 207 days AWOL (12 February - 6 September 1971)

	a.  This equates to a total of 452 days of time lost.  However, item 27 shows 952 days of time lost.  Thus, it appears a typographic error was made when the total number of days was entered on the DD Form 214.

	b.  The entry that is "lined-thru" in item 44 on the DA Form 20 indicates an incorrect entry that was deleted by Army officials because of error/mistake.

	c.  Therefore, based on the available evidence, it would be appropriate to correct item 27 of the applicant's DD Form 214 to show 452 days lost under 
10 USC 972 from 16 March through 12 April 1969 and from 10 July 1970 through 
6 September 1971.

3.  The evidence of record (i.e., the applicant's DA Form 20 and military pay records) confirms he was:

* promoted to SP4/E-4 on 14 January 1969
* reduced to PFC/E-3 on 15 March 1969
* promoted to SP4/E-4 on 29 November 1969
* reduced to PVT/E-1 on 29 September 1971

	a.  The entries that are "lined-thru" in item 33 on the DA Form 20 indicate incorrect entries that were deleted by Army officials because of error/mistake.

	b.  It is noted that the pencil entry in item 33 showing "SP4 E-4, 29 November 1969, DOD ADRB, 29 September 1971" appears to have been added to the item subsequent to the applicant's discharge.  Thus, it is concluded that it is an unauthorized/fraudulent entry.

	c.  Therefore, less the entry discussed immediately above, it is concluded that the applicant's records accurately reflect his promotions and reductions and that he was properly paid during his military service.

4.  Despite the absence of the applicant's separation packet under the provisions of Army Regulation 635-200, chapter 10, the evidence of record shows he voluntarily requested discharge to avoid trial by court-marital for being absent from 20 January to 7 September 1971.

5.  The applicant's 29 September 1971 DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

6.  A DD Form 215, dated 20 July 1978, shows the applicant's general discharge was reviewed under the provisions of Public Law 95-126 and The Adjutant General of the Army determined that the characterization of service was warranted under the provisions of DOD SDRP, 4 April 1977.

7.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has not provided such evidence.  Therefore, in the absence of evidence to the contrary, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

8.  The evidence of record shows the applicant requested discharge for the good of the service, he had 452 days (i.e., nearly 1 year and 3 months) of time lost, and he completed only about 1 year of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 27 of his DD Form 214 the entry:  "REF ITEM 21:
952 DAYS LOST UNDER 10 USC 972 FROM 16 MAR-12 APR 69, 10 JUL 70 -
6 SEP 71"; and

	b.  adding to item 27:  "REFERENCE ITEM 21:  452 DAYS LOST UNDER
10 USC 972 FROM 16 MARCH-12 APRIL 1969, 10 JULY 1970-6 SEPTEMBER 1971."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to the narrative reason and character of service of his discharge.  



      ____________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)                                         AR20110013137



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ABCMR Record of Proceedings (cont)                                         AR20110013137



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