IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110015561 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge was unjust because he was a good Soldier who volunteered for duty in Vietnam and extended his tour for
6 months.  He goes on to state that in September 1969 he requested a meeting with the unit first sergeant (1SG) and up until that time there was no question of his performance and he had not been in any trouble.  He continues by stating that he had become addicted to opium and he went to the 1SG to request help; however, the 1SG’s reaction was immediate and blistering and he called him every name in the book at the top of his lungs and told him that the only help he would get would be the stockade.  He further states he did not receive any help and the 1SG embarked on a campaign of harassment and mental abuse that resulted in a complete mental breakdown and looking like a perfect example of someone who belonged in the stockade.  He also states that in February 1970,
3 months before his enlistment would have been over, he was sentenced to
4 months in LBJ (Long Binh Jail), the most notorious and dangerous stockade in the Army, where he was forced to withdraw from opium, cold turkey, and he was sexually assaulted.  Now, 40 years later, he realizes that his 1SG was the cause of his suffering and that he deserves an upgrade of his discharge.

3.  The applicant provides a 3-page letter explaining his application.


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 enlisted in the Regular Army on 6 June 1967 for a period of 3 years and training as a communications center telephone switchboard operator.  He completed his basic training at Fort Lewis, WA and his advanced individual training at Fort Gordon, GA before being transferred back to Fort Lewis on
3 November 1967 for his first permanent duty assignment.

3.  On 16 January 1968, he submitted a request for assignment to Vietnam and on 23 June 1968 he was transferred to Vietnam for initial assignment to the 593rd Signal Company at Camp Gaylor, Tan Son Nhut Air Force Base, as a switchboard operator.

4.  On 26 February 1969, nonjudicial punishment (NJP) was imposed against him under Article 15, Uniform Code of Military Justice (UCMJ) for breaking restriction.  The record is silent as to the circumstances surrounding his restriction.

5.  On 30 March 1969, he was transferred to Headquarters and Headquarters Company, 69th Signal Battalion as a rehabilitative transfer.

6.  On 21 November 1969, NJP was imposed against him for leaving his place of duty without authority.

7.  On 1 December 1969, NJP was imposed against him for disobeying a lawful order from a commissioned officer to be present for bed check.

8.  On 13 December 1969, he was transferred back to the 593rd Signal Company as a rehabilitative transfer.


9.  On 23 January 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 26 December to 28 December 1969 and from 31 December 1969 to 12 January 1970.  He was sentenced to hard labor without confinement for 2 months, a forfeiture of pay, and reduction to the rank/grade of private (PV1)/E-1.

10.  On 9 February 1970, the applicant underwent a psychiatric evaluation at the 3d Field Hospital.  The examining psychiatrist indicated that the applicant had been seen a number of times by a social worker at the 3d Field Hospital and his problems involved his tendency to get into trouble in his unit and did not involve mental illness.  The psychiatrist opined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He further opined that there was no evidence of psychosis or neurosis or evidence of alcohol or drugs.  He diagnosed the applicant as having an "Inadequate Personality moderate; stress unknown; mild predisposition; minimal impairment" that existed prior to service (EPTS).  He further stated that the diagnosis represented a character and behavior disorder.  He recommended the applicant be discharged under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability, character and behavioral disorder.

11.  On 24 February 1970, he was convicted by a special court-martial of being AWOL from 28 January to 2 February 1970.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of pay.

12.  On 26 February 1970, during an inspection of the applicant’s personal equipment and belongings prior to entry to the stockade, a substance suspected to be opium was found in the applicant’s wallet.  The applicant was advised of his rights and released to the stockade.

13.  On 25 March 1970, the applicant’s commander notified him that action was being initiated to discharge him from the service under the provisions of Army Regulation 635-212, for unsuitability, due to his undesirable habits and traits of character manifested by repeated commission of offenses as evidenced by his disciplinary record, intentional shirking of his duties, extreme difficulty in adhering to military authority, and his psychiatric evaluation.  He was also advised that he was being recommended for a general discharge.

14.  On 28 March 1970, after consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

15.  On 4 April 1970, the appropriate authority approved the recommendation for discharge and directed the applicant be furnished a General Discharge Certificate.

16.  Accordingly, he was discharged with a general discharge at Oakland Army Base, CA on 8 April 1970 under the provisions of Army Regulation 635-212, due to unsuitability.  He served 2 years, 8 months, and 2 days of total active service with 61 days of time lost due to AWOL and confinement.

17.  At the time of his discharge he was advised in writing and acknowledged with his signature that he had been briefed on the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, there is no evidence in his official record indicating he applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

18.  Other than the discovery of suspected opium in his wallet at the time he was entering the stockade, there is no other evidence in his official record of any mention of drugs or drug-related conduct.

19.  A review of the records of counseling contained in the applicant’s record shows he was counseled by his chain of command for not reporting to work, sleeping on duty, being constantly absent from his place of duty, lack of initiative, poor personal appearance, missing bed check, failing to wake up in the morning, missing formations, and being AWOL.

20.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

21.  Army Regulation 635-200 was revised on 1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service was to be determined solely by the individual’s military record during the current enlistment.  Further, any separation for unsuitability, based on a 


personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrades of discharges based on personality disorders.

22.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are “clear and demonstrable reasons” why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial (emphasis added) was determined to be “clear and demonstrable reasons” which would justify a less than fully honorable discharge.

23.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations in effect at the time with no procedural errors that would have jeopardized his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.  

4.  The applicant’s contention that he had no problems until he went to his 1SG for help has been noted; however, the applicant has provided no evidence to support his contention and the evidence of record paints a completely different picture of his performance during the period in question.  Accordingly, his service does not rise to the level of a fully honorable discharge and there does not appear to be any basis to grant his request.


5.  The applicant was psychiatrically evaluated with "Inadequate Personality moderate; stress unknown; mild predisposition; minimal impairment."  Although Army Regulation 635-200 was revised as a result of the Brotzman and Nelson memoranda cited above, the applicant is not eligible for an upgrade of his discharge under these memoranda based on his two special court-martial convictions.

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)                                         AR20110015561



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ABCMR Record of Proceedings (cont)                                         AR20110015561



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