IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20110022659 


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 reconsideration of his previous application to upgrade his undesirable discharge (UD) to a general discharge (GD) under honorable conditions.

2.  He states his mental status was more than a contributing factor for his outward behavior.  He was awarded two Purple Hearts for injuries sustained while serving in Vietnam.  These events severely impaired his psychological makeup and he used alcohol as a resource for self-medication.  The alcohol caused recurring nightmares which are mitigating circumstances.

3.  The applicant provides the following documents:

* a letter from the Incarcerated Veterans' Consortium, Inc.
* power of attorney 
* a Standard Form 502 (Clinical Record – Narrative Summary)
* police reports
* a letter
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a page from the Summary of Army Discharge Review Board (ADRB) Hearing
* civilian medical records
* several character-reference letters



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC94-10982 on 26 October 1994.

2.  He submits new evidence in the form of military and civilian medical records which will be considered by the Board.  The previous Record of Proceedings concluded only that the applicant did not submit his application in a timely manner nor did he present sufficient evidence to justify an upgrade of his UD.

3.  The applicant was inducted into the Army of the United States on 13 April 1967.  After completion of training, he served in military occupational specialty 13A (Field Artillery Basic).

4.  He provides a copy of a Standard Form 502, dated 8 July 1968.  This form shows he was admitted to the 93rd Evacuation Hospital on 28 June 1968 while serving in Vietnam due to a right shin injury and a chronic ulcer.  The attending physician noted that the applicant had been agitated since being in Vietnam with tension, acting out, excessive drinking, reduction in rank, etc.  He had some problems with authority in civilian life but denied symptoms suggesting significant neurosis or psychosis.

5.  The Standard Form 502 also shows he returned to the ward highly intoxicated and very combative.  On one occasion he apparently got involved in some sort of escapade and returned to the ward with multiple scratches over the chest.  The psychiatric social worker noted that the applicant had a long history of acting out behavior and felt that a great deal of it was environmental in origin.  He also felt that the applicant suffered some anxiety due to some of the situations which occurred in Vietnam and he had some difficulty in controlling destructive impulses.  It was recommended that he return to duty without a change in profile and without specific recommendations for follow-up care.

6.  His record contains three DA Forms 2627-1 (Record of Proceedings under Article 15 (Uniform Code of Military Justice (UCMJ)).

	a.  On 22 July 1968, he received nonjudicial punishment (NJP) for leaving the hospital ward without proper authority on 21 and 22 July 1968 and remaining absent for several hours.

	b.  On 2 August 1968, he received NJP again for leaving the hospital ward on 27 July 1968 and remaining absent until 28 July 1968.  He was also cited for being drunk and disorderly upon his return.

	c.  On 17 December 1968, he received NJP for leaving his appointed place of duty without proper authority on 1 December 1968.

7.  On 29 January 1969, he was convicted by a special court-martial of being AWOL from on or about 1 January 1969 to on or about 14 January 1969.

8.  The applicant provides a copy of a civilian police report, dated 27 February 1969.

	a.  The applicant was a suspect of in armed robbery that occurred on 26 February 1969.  He was read his constitutional rights and was then taken to the military police headquarters at Fort Meade, MD.

	b.  The applicant stated he could have committed the robbery, but he was so drunk he could not remember.  The detective used a camera to take a picture of the applicant.  His picture along with four others was shown to the victim of the holdup.  Without any hesitation, the victim picked the picture of the applicant as the man who held him up at gun point for $80.00.

	c.  The civil authorities returned to Fort Meade with a warrant for his arrest.  After seeing the warrant, the applicant confessed to the robbery and took detectives to a friend of his and turned over a black topcoat and a 9-millimeter Beretta automatic weapon.

	d.  He was detained in the Anne Arundel County Detention Center until 3 March 1969 at which time he was arraigned before the Peoples Court.

9.  His record contains a Report of Psychiatric Evaluation, dated 11 September 1969.  He was referred for psychiatric evaluation pursuant to pre-trial.

	a.  The applicant described himself as an individual who had many friends and ran with a New York gang that frequently got into difficulty with the law.  He had several civilian arrests for such reasons as assault, stealing cars, and gang fights.  After spending some time in a rehabilitation center in upstate New York for stealing a car, he began working for a moving company.

	b.  Although he continued working for the moving company, he found himself getting into some difficulties because he was again hanging around with his old gang.  In order to avoid getting into more trouble, he joined the Army.

	c.  The applicant also admitted that he began to drink heavily at the age of 17 and claims that at times when he was drunk, he behaved in a disorderly fashion and he had memory loss for the events.

	d.  He also stated there was an incident in Vietnam when he became upset and started firing his weapon, and this necessitated him seeing a psychiatrist.  He felt that everyone in his unit was against him, that the people he worked with did not like him, and in turn began to drink excessively.

	e.  He admitted to drinking heavily and recalled being at the gas station the night of the robbery but did not recall robbing it.  When he was picked up the following morning, he could not remember any of the events which occurred the night before.

	f.  The psychiatrist found no significant psychiatric illness and diagnosed him with an inadequate personality.  He was cleared for any administrative and judicial disposition deemed appropriate by his command.

10.  The applicant provides a DA Form 19-32 (Military Police Report), dated 6 November 1969.  This form shows he entered a plea of guilty and was found guilty of the charge of armed robbery.  The judge ordered a pre-sentence investigation.  After the investigation, the judge sentenced the applicant to serve 8 years of civil confinement.

11.  He provides a copy of letter of notification from his company commander, dated 8 January 1970.  This letter states that due to his conviction for armed robbery and subsequent sentence to 8 years of civilian confinement, he may be processed for separation from the U.S. Army with a UD.  The action was suspended to give the applicant an opportunity to do the following:

	a.  request appointment of military counsel to represent him and, in his absence, present his case before a board officers;

	b.  submit a statement in his own behalf; and/or
 
	c.  waive the foregoing rights in writing or by declining to reply to the letter of notification within 30 days.

12.  The same letter shows the applicant was asked to expedite his reply, but if his reply was not received within 30 days of the date of receipt of the notification, the recommendation for his discharge, if approved by the discharge authority, may be accomplished with the type of discharge certificate as determined to be appropriate.

13.  A certificate, dated 9 January 1970, confirmed that on or about 1100 hours on the same day, Second Lieutenant K____ A. M____, personally delivered the notification of the applicant's rights under Army Regulation 635-206 (Personnel Separations – Conviction by Civil Court).

14.  The applicant's acknowledgement statement and the complete discharge proceedings are not available for the Board's review.  However, a 
DA Form 2496-1 (Disposition Form), dated 10 September 1970, subject:  Separation Under the Provisions of Army Regulation 635-206, shows his company commander requested the applicant's discharge from the service in absentia.  It noted he was confined in the Maryland House of Corrections in Jessup, MD, and the applicant listed his home of record as Queens, NY.

15.  The DD Form 214 he provides shows he was discharged under the provisions of Army Regulation 635-206 on 22 September 1970.  His service was characterized as under other than honorable conditions.  This form shows he completed 1 year, 9 months, and 4 days of net service and 10 months and 5 days of foreign service in Vietnam.  His awards include the Purple Heart.

16.  His DA Form 20 (Enlisted Qualification Record) shows the following information:

* item 31 (Foreign Service) – he served in Vietnam from 6 November 1967 through 13 September 1968
* item 33 (Appointments and Reductions) – private first class/E-3 was the highest grade he attained while serving on active duty
* item 40 (Wounds) – he received gunshot wounds to his arm and leg on 18 February 1968
* item 40 – he was wounded on 4 June 1968 (the type and location of the wound(s) is/are not shown)
* item 41 (Awards and Decorations) – the Purple Heart is the most significant award shown
* item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) –

* absent without leave (AWOL) from 1 to 13 January 1969
* confinement from 29 January to 22 February 1969
* civil conviction and confinement from 27 February 1969 to 21 September 1970

17.  He provides page 1 of 4 pages of his ADRB Summary of Hearing.  His record contains the entire packet and shows the applicant appeared before the ADRB.

	a.  The applicant testified to his reaction from overindulgence in alcohol and to problems incurred from combat experiences.  He talked about his civil conviction; however, he could not remember the details which caused these actions.  His contention concerning the military as the cause of his problems was related to a lack of relief for problems prior to the commission of the offense.  He listed alcoholic tendencies and combat situations, coupled with lack of assistance by the military, as the leading causes which resulted in his discharge.

	b.  The ADRB determined that the separation procedures were properly carried out by the command.  The board took note of his experiences in Vietnam and the fact that he was wounded twice.  The board could not determine that his alcohol involvement was a basis for his misconduct and, as such, could not consider that his misconduct by virtue of civil offense was mitigating.  One member of the board voted to excuse his civil offense on the basis of his prior service experience and the involvement of alcohol.  All other members of the board took note of this consideration; however, the majority determined that an upgrade of his discharge would not be appropriate.

18.  He provides a hospital discharge summary from the North Carolina Division of Mental Health Developmental Disabilities and Substance Abuse Services.  The summary shows he was admitted on 29 November 2004 for complaints of depression and anxiety.

	a.  The mental status section shows he was not cooperative and his psychomotor behavior was somewhat agitated and hostile.  He appeared to have flight of ideas and paranoid delusions with questionable hallucinations.

	b.  He was given various medications throughout the course of his hospital stay.  Depakote was found to help the applicant with his irritable mood and Lexapro was given for depression.

	c.  He was diagnosed with the following mental health and dependency conditions:

* post-traumatic stress syndrome 
* polysubstance dependency
* antisocial personality disorder
* substance abuse
* chronic mental illness

	d.  He was discharged from the hospital on 16 December 2004 and his prognosis was stated to be guarded in view of his antisocial personality and substance usage.

19.  He provides five character-reference letters.  These letters collectively show the applicant was noted to:

* be determined and focused
* be accountable for his actions
* participate in community activities
* exhibit a sincere desire to serve his fellow man and community
* be a conscientious, intelligent, and articulate individual who relates and interacts well with others
* be dedicated to the love and reverence of God
* respect and assist people without partiality
* accomplish any task asked of him
* be a leader to his peers
* exhibit behavior of a person who is responsible and reliable
* be well liked among his peers and staff alike
* be informative and easy to talk to
* be committed to meeting objectives in a timely manner

20.  The letter the applicant provides from the Incarcerated Veterans' Consortium, Inc., dated 21 March 2011, shows:

	a.  The applicant was incarcerated within the required stated 3-year period after discovery of the alleged error or injustice; therefore, he could not file for an upgrade of his discharge within the statute of limitations.

	b.  Although there is documentation which shows he was advised of his rights pertaining to the discharge on 8 or 9 January 1970, there is no documentation to support whether he was properly advised about the procedures to challenge or how to have a negative discharge upgraded.

	c.  There is no evidence of there being any services within the correctional facility to advise or assist him in any manner regarding this issue.   At some point after his release from incarceration, he appealed to have his discharge upgraded but it was denied on 6 February 1978.

	d.  Upon arriving in Vietnam, the applicant was asleep on his bunk when he was suddenly awakened by the sounds of mortar/rocket fire.  While still in a state of semi-sleepiness, he became hysterical and began to carelessly fire his M-16 rifle.  As a consequence of a very unfortunate circumstance, he was stripped of his weapon for the remainder of his tour in Vietnam.


	e.  He was continually sent into perilous and direct combat situations, resulting in being wounded in two separate life-threatening incidents, both of which have had a very deep and profound negative impact on his mental health condition.

	f.  The applicant began to drink in excess and his behavior and attitude were greatly affected by these life-altering events.  He began to believe that he would be killed, at worst, without a fair opportunity to protect himself.  This was noted in his military medical treatment records, yet it was minimized and he received no psychiatric help or assistance.

	g.  He returned to duty without a change in his profile or recommendation for follow-up care.

	h.  Since his release from incarceration, he has made great strides in correcting his life and behavior.  By upgrading his discharge to a GD, under honorable conditions, he will be able to obtain consistent mental health treatment at a Department of Veterans Affairs (VA) medical center and at a veterans' center.  Both these entities would go a long way in enhancing the applicant's quality of life.

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

22.  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 applicant contends his UD should be upgraded to a GD because he suffered mental distress in Vietnam which led to heavy drinking and ultimately to the trouble which caused his incarceration and discharge.

2.  The fact that he suffers with PTSD and other mental health issues as a result of serving in Vietnam is not disputed in this case.  However, during a pre-trial 


psychiatric examination on 11 September 1969, he described himself as an individual who had many friends and ran with a New York gang that frequently got into difficulty with the law.  He had several civilian arrests for assault, stealing cars, and gang fights.

3.  He also admitted that he began to drink heavily at the age of 17 and claims that at times when drunk, he behaved in a disorderly fashion but had a memory loss for the events which took place.  Therefore, his arguments that his excessive drinking occurred after serving in Vietnam and this led to his periods of indiscipline are without merit.

4.  His record shows he received NJP on several occasions, was convicted by a special court-martial, and then ultimately convicted by a civil court for armed robbery subsequent to his plea of guilty.

5.  During his incarceration, he was advised of his rights pertaining to the separation proceedings and his right to counsel.  The action was suspended for 30 days pending his acknowledgement.  He was also informed that if his reply was not received within 30 days, the discharge authority reserved the right to issue the type of discharge certificate he/she deemed appropriate.

6.  A copy of his acknowledgement was not available for review nor was the complete discharge packet.  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.

7.  The applicant's service in Vietnam, award of the Purple Heart, mental health conditions, and substance abuse have been carefully considered as well as his post-incarceration accomplishments.  While these are all certainly mitigating factors, they do not warrant upgrading a properly-issued discharge.  It is apparent that his discharge was based on his conviction by a civil court during his term of active duty.

8.  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.

9.  In view of the foregoing, he is not entitled to the 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC94-10982, dated 26 October 1994.



      ____________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)                                         AR20110022659



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ABCMR Record of Proceedings (cont)                                         AR20110022659



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