BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120004592 


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 an upgrade of his undesirable discharge to a medical discharge or an honorable discharge.

2.  He states that after a lower fifth lumbar spine injury in Vietnam in 1969, he was given a permanent (P3) profile at the 71st Evacuation Hospital.  He also maintains he was exposed to Agent Orange while in Vietnam.  He explains that he developed a breathing disorder a couple of years after returning from Vietnam and by age 44 he was diagnosed with diabetes.  He also states he has post traumatic stress disorder (PTSD) from being a forward observer and a howitzer projectile carrier.  He adds that his hearing was damaged during a fire mission and his ears were stuffed with cotton and taped up for a while by a medic.  

   a.  He offers that from the date of his profile, 27 May 1969, he was no longer medically fit for military service.  He provides a list of nine Article 15s he received under the provisions of the Uniform Code of Military Justice (UCMJ) which he maintains should not have occurred since he should have been released from military duty.  He adds that the chain of command went against the physicians’ medical recommendations and tried to get him to violate his profile.  He adds when he told them he could not do something and why, he got in even more trouble, which is the reason why he received several of the Article 15s.

	b.  He also states that he appeared before the Army Discharge Review Board (ADRB) and during their review in April 1982, his "due process" was violated.  He explains that he and his attorney did not have enough time to prepare a proper defense.  Their lack of preparation was due to the unavailability of his records prior to the ADRB hearing.  He argues that one of the board member's twin brothers was in charge of him in Vietnam, which presented a conflict of interest.  Additionally, he states all of the board member's were high ranking officers and none were noncommissioned officers (NCO).

3.  The applicant provides the following:

* Self-authored statement
* Applicant's letter to the President, dated 4 February 2012
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 8-274 (Medical Condition - Physical Profile Record), dated
27 May 1969

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 24 January 1968 for a period of 3 years.  He served in Vietnam from 26 February 1969 to 26 February 1970.

3.  On 27 May 1969, he received a P3 profile, limiting his duty, due to a defect of "Bilateral Spondylolysis."  His restrictions included:  no heavy lifting (20 pounds), no running or prolonged walking or standing over 30 minutes.  The authorizing medical officer checked the block in Section A (Duty Status) indicating that "individual is returned to your unit for separation processing."  However, it appears the entire document was misaligned in a typewriter which caused the entries to appear on the line below the intended line.  That said, it appears the medical officer intended to check the block indicating the "Individual is returned to your unit for duty."  The medical officer also indicated the applicant was medically qualified for limited duty.

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ for the following offenses:

* 9 July 1969, sleeping on guard duty
* 22 February 1970, disobeying a lawful order and possession of 22.8 grams of marijuana 
* 2 June 1970, being absent from 0715 hours to 1700 hours
* 2 July 1970, disobeying a lawful order given by a senior NCO
* 5 August 1970, disobeying a lawful order given by a senior NCO
* 18 August 1970, being absent without leave (AWOL) from 11 to 16 August 1970
* 4 and 8 September 1970, failure to repair
* 11 September 1970, disobeying a lawful order

5.  On 20 August 1970, he underwent a psychiatric examination at the request of his commander.  The staff psychiatrist stated that the applicant's background was described as somewhat chaotic, with his parents divorce and considerable conflict between the subject and his father.  He stated the applicant completed the 10th grade and he denied having a juvenile record.  

   a.  The psychiatrist further stated that the applicant described an extremely heavy history of heroin, hallucinogenic, and marijuana usage.  He participated in the Fort Bragg "Operation Awareness" drug program and was a patient on the ward.  He was observed smoking marijuana on the ward and was told that if he did it again he would be eliminated.  The psychiatrist said the applicant was totally useless in his unit and refused to conform to any military standards.  He added that the applicant briefly "quit" being a Soldier.  The applicant stated that he had no motivation to continue his military tour.  

   b.  The psychiatrist strongly recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability).  He stated the applicant had no condition warranting consideration under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), he knows right from wrong and he can adhere to the right, and he possesses adequate intelligence to participate in any board proceeding involving him.  His psychiatric condition was that of a character and behavior disorder and he was not amenable to rehabilitation or psychotherapy.   

   c.  The psychiatrist said the applicant described a $600.00 a month heroin addiction and he also described a habit in Vietnam where he smoked 100 to 150 "joints" per day; further he described taking LSD 40 to 50 times.  After carefully examining the applicant's arms and finding no evidence of old thrombophlebitic processes or abscesses, and noting the relative impossibility of habitually smoking 100 "joints" of Vietnam marijuana daily, the psychiatrist opined that the applicant was a poor historian.  However he was convinced that the applicant was a habitual user of drugs, probably hallucinogenic substance.  He concluded that whether the applicant's heroin usage or marijuana usage was near what he claimed was quite academic at that point.
   
6.  On 7 October 1970, the applicant's unit commander recommended that he be required to appear before a board of officers to consider his separation from the Army under the provisions of Army Regulation 635-212.  The commander cited the applicant's habits and traits of character manifested by repeated commission of petty offenses and habitual shirking as the basis for his recommendation.

7.  Although a copy of the applicant's consultation with military counsel concerning the commander's recommendation that he be discharged under the provisions of Army Regulation 635-212 for unfitness is not contained in the available record, the ADRB case report acknowledged that, on 8 October 1970, the applicant waived his rights to a Board of Officers.  Additionally, he submitted a statement asking for consideration for a general discharge.  

8.  On 22 October 1970, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, unfitness.   He directed that the applicant be furnished an Undesirable Discharge Certificate.

9.  On 29 October 1970, he was discharged with service characterized as under other than honorable conditions with the issuance of an Undesirable Discharge Certificate.  His DD Form 214 shows the reason and authority for discharge was listed as Army Regulation 635-212 with a separation program number (SPN) of 386 due to unfitness, an establish pattern for shirking.  He completed 2 years, 9 months, and 1 day of total active service with 5 days of lost time.

10.  There were no medical records available to the Board and the applicant provided no medical records. 

11.  On 7 April 1981, the applicant appealed to the ADRB to upgrade his discharge.  On 20 May 1982, the ADRB denied his request for a discharge upgrade citing that he was properly discharged.

12.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until Soldier is scheduled for separation, is an indication that the individual is fit.  

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

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

16.  Army Regulation 15-180 (ADRB) prescribes operating procedures of the ADRB.  The regulation states that the ADRB will have one or more panels.  Each panel, when in deliberation, will consist of five officers.  The senior officer (or as designated by the president of the ADRB) will act as the presiding officer. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be changed to a medical and/or an honorable characterization of service because of his medical conditions that occurred while on active duty.  He provides his P3 profile to substantiate his claim.  There is no evidence, and the applicant has not provided any, which confirms that he was physically unfit to perform his duties at the time of his discharge.

2.  The available evidence shows the applicant was separated for unfitness due to an established pattern of shirking.  The psychiatric examination conducted prior to his discharge confirms that he was able to distinguish right from wrong and adhere to the right.  Additionally, the examination confirms that he had no disqualifying mental defects sufficient to warrant disposition through medical channels and he possessed adequate intelligence to participate in any board proceeding involving him.  In view of these facts, the applicant's contention that he should have received a medical discharge is not supported by the available evidence.  

3.  The evidence of record further shows the applicant received nine Article 15's and the commander recommended him for discharge based on his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  These conditions are consistent with the conditions cited for separation for unfitness.  Additionally, as stated in Army Regulation 635-212, when separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  

4.  The available evidence indicates that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

5.  He must provide evidence to prove his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  He failed to provide such evidence.

6.  In reference to the applicant's comments concerning the composition of the ADRB, as cited above, each ADRB panel will consist of five officers.  Therefore, there is no authority to have NCO's on the ADRB panel.

7.  In view of the foregoing, there is no basis for granting the applicant’s request. 

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)                                         AR20120004592



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ABCMR Record of Proceedings (cont)                                         AR20120004592



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