IN THE CASE OF:	  

		BOARD DATE:	 31 July 2012 

		DOCKET NUMBER:  AR20110025029 


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 his undesirable discharge (UD) be upgraded to a general discharge (GD) under honorable conditions.

2.  He states he believes his record to be in error or unjust because he served honorably in combat during the Vietnam Conflict and did not show any signs of mental illness until his tour of duty in Vietnam.  He also states:

	a.  He displayed signs of mental instability and post-traumatic stress disorder (PTSD) prior to his return from Vietnam, as noted by superiors in his service record.

	b.  His behavior was not dealt with appropriately.

	c.  The crimes he was accused of that led to his discharge were not appropriately handled because of his mental illness and the fact that he was not involved in the robbery mentioned.

	d.  He was accused of armed robbery at a gas station.  He had no knowledge that the people he was with had weapons or any knowledge of their intent to rob the store.  He was at the wrong place at the wrong time. 

	e.  He was charged with being absent without leave (AWOL) two times and both are noted to have occurred after his tour in Vietnam and coincide with avoidance behaviors associated with PTSD.
	f.  Despite the influences on his mental health which were caused by his participation in the Vietnam Conflict, he has deteriorating health from Agent Orange exposure. 

3.  The applicant provides:

* an extract of his military medical record
* an appeal of nonjudicial punishment (NJP)
* a DA Form 20B (Insert to DA Form 20 (Enlisted Qualification Record))
* portions of his separation packet
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* three personal reference letters

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.  He enlisted in the Regular Army on 30 April 1970.  After completion of training, he served in military occupational specialty 76S (Automotive Repair Parts Specialist).

3.  His DA Form 20 shows the following information:

* item 31 (Foreign Service) – he served in Vietnam from 6 November 1970 through 17 December 1971
* item 33 (Appointments and Reductions) – he had a succession of promotions and reductions and the highest grade he attained was private first class/E-3
* item 41 (Awards and Decorations) – no special recognitions or significant awards

4.  His DA Form 20 also shows he had nine separate periods of AWOL with the first offense occurring 2 weeks prior to his deployment to Vietnam.  He also had two other periods of AWOL during his tour in Vietnam. 

5.  A review of his record shows he received NJP on five occasions between 
6 March 1971 and 7 May 1973 for offenses that include:

* failing to go to his prescribed place of duty on time
* sleeping at his post as a sentinel in Vietnam
* disobeying a lawful order
* breaking arrest
* being AWOL

6.  The applicant provided a copy of a letter in which he appealed a 7 May 1973 NJP which showed him as being AWOL on 2 May 1973.  He stated he was not in his right mind on 2 May 1973.  His wife called his unit for help and as a result, he was apprehended by the Lawton police for his own protection and was turned over to the military police.  He was released to his command and admitted to Reynolds Army Hospital the same day for mental health treatment.

7.  A DA Form 2627-2 (Record of Appellate or Other Supplementary Actions under Article 15, Uniform Code of Military Justice (UCMJ)) shows his appeal was denied on 11 May 1973.

8.  His record contains Special Court-Martial Order Number 80, dated 28 September 1972.  Contrary to his pleas of "not guilty" he was charged with two specifications of being AWOL on two occasions between the period 10 July and 8 August 1972.

9.  He provided and his medical record contains information showing he was diagnosed with the following:

* heroin dependence
* depressed mood, not psychotic or suicidal
* immature personality
* hysterical neurosis, conversion type, acute
* dissociative reaction, severe, acute
* explosive personality, chronic, moderate
* passive aggressive personality 

10.  On 7 May 1973, the applicant underwent a psychiatric evaluation.  The psychiatrist noted that he was able to distinguish right from wrong and adhere to the right.  He was mentally responsible for his actions and had the mental capacity to understand and participate in board proceedings.  He was also cleared for any administrative or disciplinary action.

11.  A copy of his civil arrest record is not available for review; however, his DA Form 20 shows he was convicted of armed robbery by a civilian court and was sentenced to 5 years of probation and 6 months of civil confinement.

12.  On 8 September 1973, the applicant was recommended for discharge under the provisions of section VI, Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).  His commander noted the basis for the action was the applicant’s plea of guilty to the civilian charge of robbery by force and fear and his subsequent sentencing in Comanche County Circuit Court, Lawton, OK, on 31 August 1973.  He was sentenced to 5 years of probation with the first 6 months served in the county jail.

13.  The applicant acknowledged he was being considered for elimination from the service for his civil conviction.  In the notice, he was presented with his rights to present his case to a board of officers, to submit a statement in his own behalf, to be represented by counsel, and to waive his rights.  On 8 September 1973, the applicant waived all his rights and chose not to submit a statement on his own behalf.

14.  His chain of command recommended approval of the recommendation for his discharge and on 2 October 1973 the approving authority approved the applicant's separation and directed his reduction to the lowest enlisted grade and issuance of a DD Form 258A (Undesirable Discharge Certificate).

15.  The applicant was discharged on 5 October 1973 under the provisions of Army Regulation 635-206 for being convicted by a civil court during his current term of active military service.  His characterization of service was listed as under other than honorable conditions.   He was credited with 2 years, 7 months, and 25 days active Federal service with 258 days of lost time due to AWOL and confinement.

16.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  He provides three personal reference letters.

	a.  These letters collectively show the applicant never had a home to call his own and he lived with his brother on multiple occasions over the last 30 years.  During these times, he mentioned having to get his mind together because it was not right.
	b.  His service records show he had several psychological evaluations.  Upon his return from Vietnam, he was a completely different person and his hygiene was deplorable.  The applicant needed intervention directly following his tour in Vietnam and that help failed to be adequately extended.

	c.  His niece notes she is a psychology student and began noticing his mental instability before many of her family members understood his problem.  This instability has prevented him from performing and/or learning basic needs that are vital for productive members of society.  He had problems with substance abuse in the past but has been free from this burden for at least 5 years.   He has depressed moods and trouble sleeping.

	d.  A second brother of the applicant notes the applicant was discharged from the service over 30 years ago and he has witnessed him battle with himself.  He has also seen other conditions including headaches, chest pains, avoidance behavior toward war films and memorabilia, difficulty sleeping, and stiffened finger joints.

	e.  The applicant was recently diagnosed with cancer and his greatest fear is that his quality of care and condition may deteriorate without treatment.  He has no income and has not had regular employment in years.  The applicant is a wonderful and loving person and it pains him to see his brother in this state.

	f.  His brother’s discharge should be upgraded because he served his country honorably in battle and as a result it cost him several critical parts of his life.

18.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  It provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and authority for enlisted active duty separations.  It further provides guidance on the characterization of service.

	a.  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.

	b.  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 substance abuse and ultimately to the trouble which caused his incarceration and discharge.

2.  However, his record shows he received NJP on several occasions, one of which was prior to his deployment to Vietnam.

3.  He was also convicted by a special court-martial and then ultimately convicted by a civil court for armed robbery subsequent to his plea of guilty.

4.  The applicant's service in Vietnam, mental health conditions, and substance abuse have been carefully considered as well as the information provided by his family members in the personal reference letters.  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.

5.  The applicant's desire to have his UD upgraded to a GD in order to apply for Department of Veterans Affairs 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.

6.  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 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)                                         AR20110025029



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ABCMR Record of Proceedings (cont)                                         AR20110025029



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