IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120002174 


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 a pardon and an upgrade of his undesirable discharge (UD) to a general discharge (GD).  

2.  He states he served his time in Vietnam and he knows he made mistakes, but he was just a young foolish kid.  He lives for the day that he can hold his head up and talk to other vets on the same page.

3.  He provides a Standard Form 180 (Request Pertaining to Military Records), his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a letter he sent to the National Personnel Records Center.

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 record is void of documentation showing he was convicted by a court-martial.  In the absence of a conviction, there is no basis for a pardon.  His request for a pardon will not be discussed further in these Proceedings.

3.  The applicant's record shows his date of birth as 4 August 1950.

4.  On 7 April 1970, at age 19, he enlisted in the Regular Army.  He completed initial entry training and he was awarded military occupational specialty 36C (Telephone Installer).  On a date not shown in his record he was assigned to Vietnam.  

5.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) three times while he was serving in Vietnam:

* on 13 March 1971, for absenting himself from his place of duty on three occasions
* on 30 March 1971, for failing to go at the time prescribed to his appointed place of duty
* on 8 May 1971, for failing to go at the time prescribed to his appointed place of duty

6.  A DD Form 458 (Charge Sheet), dated 15 May 1971, shows he was charged with the following offenses occurring on 12 May 1971:

* failing to go at the time prescribed to his appointed place of duty (twice)
* stealing monies and checks from a PX cashier by means of force and violence and putting her in fear
* assaulting a PX cashier by threatening her with a pistol
* breaking restriction

7.  A memorandum, dated 25 May 1971, subject:  Report of Sanity Board Evaluation, shows he was evaluated at the U.S. Army Vietnam (USARV) Stockade and the 24th Evacuation Hospital on five dates in May 1971.  The memorandum states:

"Review of present difficulties reveals in approximately mid February 1971, [the applicant] took two jobs of 'acid.'  He had a 'beautiful trip,' but afterwards, he felt himself begin to change.  He felt as if people were trying to harm him, and that his brain was 'just changing over.'  He felt 'a great pressure inside his head.'  He tried to tell his friends about it, but he couldn't make them understand.  At times, he couldn't control his actions, and would wall off guard duty.  He would sometimes steal a truck, and just drive around.  One night, he stopped by a Tasti-Freeze place, and pulled a knife on the two girls who worked there; he told them that if 'they didn't shut up, he would kill them.'  He tied them up, and took the money.  He kept hearing voices inside his head that told him to take anything he wanted.  On 14 May 1971, he was out riding in a truck with a friend of his...On impulse he got out of the truck and robbed a [post exchange (PX)].  He had a gun and a knife with him.  He ran back to the truck.  He says [his friend] didn't know what he was going to do when he went into the PX.  He was caught the same day, and placed in the USARV Stockade.  Because of his abnormal behavior, he was placed in maximum security.  He was seen by Mental Hygiene on 16 May 1971, and he was transferred to the psychiatric ward of the 24th Evac Hospital."

8.  The memorandum shows:

   a.  upon admission on 17 May 1971, he was "obviously quite disturbed, holding his head, and occasionally pounding on it, trying to make the voices stop";

   b.  he underwent psychological tests on 21 and 22 May 1971, and the examiner's impression was "acute schizophrenic episode manifested by a thought disorder, emotional turmoil, and depression";

   c.  he was hospitalized and started on anti-psychotic medication;

   d.  he improved and on the date of the memorandum he was relatively free from hallucinations;

   e.  he was diagnosed with "acute psychotic reaction, acute severe manifested by auditory hallucinations, depression, poor impulse control, paranoid feelings"; and

   f.  the examining psychiatrist found:

* at the time of the alleged offenses he knew right from wrong
* he was not able to adhere to the right because of the acute psychotic episode
* at the present time, he possessed sufficient mental capacity to understand the nature of the proceedings against him and to cooperate in his own defense

9.  The examining psychiatrist did not recommend his return to duty in Vietnam.  He recommended the charges against him be dropped and that he be returned to the continental United States (CONUS) for further psychiatric hospitalization and either separation from the service or return to duty in CONUS.

10.  A second memorandum, dated 4 June 1971, subject:  Report of Sanity Board Evaluation summarizes the information in the earlier memorandum.  Three psychiatrists signed the memorandum, recommending the applicant's medical evacuation to a hospital in CONUS as soon as possible.   

11.  A memorandum, dated 19 June 1971, shows the charges against him were to be withdrawn and that he was released from pre-trial confinement for the purpose of medical evacuation to CONUS for further medical treatment.  

12.  His record includes a Standard Form 502 (Clinical Record – Narrative Summary) showing he was admitted to the U.S. Army Hospital Special Treatment Center, Fort Gordon, GA, on 26 June 1971.  The form shows an examining physician found:

* his psychotic episode had remitted by the time he was admitted
* during his hospitalization at Fort Gordon he was "at all times appropriately and well motivated to return to duty"

13.  The examining physician recommended that, in light of his clinical status and appropriate motivation to return to duty, he be assigned to a large stateside military facility with an active mental hygiene clinic and that he be followed on his medication as an outpatient and evaluated in 90 days.

14.  A DA Form 19-32 (Military Police Report) shows he was absent without leave (AWOL) beginning on 9 September 1971 and dropped from the rolls of the 6th Battalion, 82nd Field Artillery, Fort Bragg, NC, on 8 October 1971.  This form also shows, on 20 November 1971, he was returned to military control after he was apprehended by civil authorities.  

15.  The complete facts and circumstances of his discharge action are not included in the available record.  However, his record does include a properly constituted DD Form 214, dated 10 December 1971, which shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 with a UD.  

16.  On 27 July 1973, The Adjutant General informed the applicant the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.  

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

	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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge to a GD. 

2.  While he was serving in Vietnam, he received NJP on three occasions and was charged with four offenses that warranted trial by court-martial.  The record indicates his misconduct was the result of a psychotic episode, and it appears the court-martial charges were dismissed due to this episode.  The record shows that, after receiving medical treatment, he was deemed fit to return to duty, and he was assigned to a unit at Fort Bragg, NC.  On or about 9 September 1971, he went AWOL, and he did not return to military control until 20 November 1971.  

3.  His record is void of the specific facts and circumstances surrounding his discharge action.  It appears that subsequent to his return to military control on 20 November 1971 he was charged with being AWOL, which is an offense punishable under the UCMJ with a punitive discharge.  

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

5.  It must also be presumed that the separation authority considered his overall record and determined his service was not sufficiently mitigating to warrant a GD.  

6.  The available record shows he was age 20 at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

7.  In the absence of evidence showing the characterization of his service was inequitable or unjust there is no basis for upgrading his discharge to a GD.

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)                                         AR20120002174



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002174



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1