BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110018570 


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, upgrade of his undesirable discharge.

2.  The applicant states:

* He did not get a court-martial
* He was a heroin addict
* He did not get a chance to tell his side
* He did not get any rehabilitation
* He was planning to make the Army his life

3.  The applicant provides:

* Undated letter from his mental health clinician/therapist
* Medication profile
* Diagnostic history
* Adult initial assessment
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

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 19 February 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty 63A (mechanic maintenance apprentice).  On 24 March 1969, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 25 March 1969 for a period of 4 years.

3.  Nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant on 28 March 1969 for being drunk in public and carrying a concealed weapon.

4.  On 17 October 1969, NJP was imposed against him for failing to repair.

5.  He was reassigned to and arrived in Vietnam on 3 December 1969.

6.  Between December 1969 and September 1970, NJP was imposed against the applicant on seven occasions for:

* Violating a lawful general regulation (being in an off-limits area)
* Found sleeping on sentinel post (two specifications)
* Failing to repair on multiple occasions
* Being absent without leave (AWOL) from his unit for 15 hours
* Being AWOL for 3 days
* Being absent from morning formation
* Being AWOL for 2 days

7.  On 3 August 1970, he underwent a psychiatric evaluation.  He was diagnosed with a passive-aggressive personality, immature and impulsive, mild, manifested by his contempt for authority and refusal to cooperate with supervisors.  The psychiatrist found him mentally responsible and cleared him for any administrative action deemed appropriate by his command.


8.  On 19 August 1970, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander stated discharge was recommended because of traits and habits of character manifested by commission of petty offenses and habitual AWOL.

9.  On 27 August 1970, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

10.  On 31 August 1970, he underwent a separation physical examination and he was found qualified for separation.

11.  On 10 October 1970, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

12.  He departed Vietnam on 22 October 1970.

13.  On 22 October 1970, the applicant was discharged under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 8 months, and 1 day of total active service with 4 days of time lost.

14.  There is no evidence of record which shows he was diagnosed with drug abuse or dependency prior to his discharge.

15.  He provided medical documentation that shows he attends an outpatient mental health clinic in California.  He is diagnosed with major depressive disorder, recurring, severe with psychotic features and post traumatic stress disorder related to Vietnam service.

16.  On 14 October 1975, the Army Discharge Review Board denied his request for a discharge upgrade.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.


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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was a heroin addict and did not get any rehabilitation.  However, there is no evidence of record which shows he was diagnosed with drug abuse or dependency prior to his discharge or that he sought help for himself for drug dependency.

2.  He contends he did not get a chance to tell his side.  However, evidence shows he consulted with counsel on 27 August 1970.  He had an opportunity to submit a statement or request a board of officers in which he could have voiced his concerns; however, he elected not to do so.

3.  His record of service during his last enlistment included nine NJPs and 4 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20110018570



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ABCMR Record of Proceedings (cont)                                         AR20110018570



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