IN THE CASE OF:	   

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120021638 


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 an upgrade of his under conditions other than honorable discharge to a general or honorable discharge.

2.  The applicant states he was on his second enlistment when an incident occurred which caused his undesirable discharge.  He was recently made aware that his judgment and decision-making process was compromised by symptoms of undiagnosed post-traumatic stress disorder (PTSD).  A Department of Veterans Affairs (VA) psychologist informed him the symptoms he exhibits are due to his experiences in the Republic of Vietnam.  He requests the Board take into account his receipt of the Purple Heart and the traumatic events of war on a young man when reconsidering his application.  If possible, the applicant requests to appear before the Board.

3.  The applicant provides a letter from a VA staff psychiatrist.

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 AR20120000505, on 10 July 2012.

2.  The applicant provides a new argument that will be considered by the Board.
3.  The applicant enlisted in the Regular Army (RA) on 14 August 1967, at the age of 17 years, 9 months, and 8 days.  He completed training and was awarded military occupational specialty 71L (Administrative Specialist).  

4.  The applicant was honorably discharged on 9 July 1970 for the purpose of immediate reenlistment.  He reenlisted in the RA on 10 July 1970 for 6 years.  He was again honorably discharged on 29 July 1971 for the purpose of immediate reenlistment.  He reenlisted on 30 July 1971.  

5.  His record shows he served in the Republic of Vietnam for the period              24 September 1971 through 15 March 1972.  On 8 March 1972, he was awarded the Purple Heart for wounds received in action on 3 March 1972.  He later served in Okinawa, Japan from 16 March 1972 through 15 September 1974.

6.  His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 1 October 1973, which shows he was apprehended by Japanese civil authorities for smuggling, possession, and transfer of heroin on    1 October 1973, at the age of 23 years, 10 months, and 25 days.  

7.  On 13 December 1973, he was convicted by a special court-martial of one specification of forgery on 28 April 1971.

8.  On 5 March 1974, the applicant was convicted in a Japanese court of the illegal transportation, possession, and transfer of heroin and sentenced to           4 years of forced labor.  

9.  On 9 March 1974, the applicant's company commander initiated action to discharge the applicant under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), due to a civil conviction for possession of narcotics.  

10.  On 12 March 1974, after consulting with counsel, the applicant acknowledged receipt of the proposed discharge action and elected to appear before a board of officers.  On 5 April 1974, a board of officers recommended the applicant be discharged from service because of his conviction by civil court with the issuance of an Undesirable Discharge Certificate.  

11.  On 6 June 1974, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 and directed the issuance of an Undesirable Discharge Certificate, upon his release from civil confinement and return to the United States.  

12.  His records contain a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged on 8 June 1976 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was credited with completing 6 years, 4 months, and 7 days of total active service and had 723 days of time lost.

13.  Records show the applicant underwent a separation medical evaluation and a routine psychiatric evaluation and there was no evidence of a diagnosis or treatment for PTSD or any other mental condition at the time of separation.

14.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

15.  On 7 March 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge.

16.  The applicant provides a letter from a VA staff psychologist.  The psychologist states the applicant is being followed at the VA for PTSD secondary to combat-related trauma in Vietnam.  She further states the applicant was unaware that he was dealing with chronic PTSD symptoms until he participated in a mental health consultation in October 2011.  Since that time, he has been participating in treatment and his symptoms have improved.  

17.  Army Regulation 635-206, in effect at the time, provided that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted, an Undesirable Discharge was considered appropriate.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated 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.  An Undesirable Discharge would normally be furnished to an individual who was discharged for the good of the service.

19.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

20.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

21.  Army Regulation 15-185 governs operations of the ABCMR.  Para 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of an upgrade of his under conditions other than honorable discharge to a general or honorable discharge has been carefully reexamined and found to lack merit.

2.  Additionally, the applicant's request for a personal appearance hearing was carefully considered.  By regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

3.  The applicant appears to allege he suffered from PTSD during his service in the Republic of Vietnam.  There is no evidence in his military records and the applicant has not provided sufficient evidence which shows he was diagnosed with PTSD or any other mental condition at the time of his discharge.  Additionally, there is no evidence which shows his misconduct was a direct result of the alleged condition.  Therefore, this argument is not sufficient to support his request to upgrade his discharge.

4.  The applicant's records show he was over 23 years of age at the time he was  arrested by Japanese civil authorities for smuggling, possession, and transfer of heroin.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.
5.  The applicant's contentions and all available evidence have been considered; however, they do not support a change to his Undesirable Discharge.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  

6.  His record contains a DD Form 214 that shows he was discharged on 8 June 1976 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by a court-martial.  Considering his discharge under the provisions of Army Regulation 635-206 was approved on 6 June 1974 and he was discharged on    8 June 1976 (about the time he could have been released from Japanese confinement), it appears unlikely his discharge for civil conviction was cancelled and a discharge in lieu of trial by court-martial was initiated.  However, either discharge normally warranted an undesirable discharge.

7.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120000505, dated 10 July 2012.




      _______ _   _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)                                         AR20120021638



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ABCMR Record of Proceedings (cont)                                         AR20120021638



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