IN THE CASE OF:	  

		BOARD DATE:  5 November 2013

		DOCKET NUMBER:  AR20130003422 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he was 24 years old when he was drafted and sent to Vietnam.  He was treated for a back injury in basic training, but consistently performed all of his duties.  He was advanced to the rank/grade of private first class (PFC)/E-3 and he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge with Rifle
(M-14) Bar, and one Overseas Service Bar.

	a.  He states that because of racial conditions during the Vietnam era, there was unfair treatment of black Soldiers.  His platoon sergeant in the 155th Transportation Company disliked black men and did everything he could to have them discharged.  On one occasion in Vietnam, his brothers came to visit him at his unit, but he was denied the opportunity to visit with them.  He ignored the order and acknowledges that he was wrong in violating that order.  When he returned to his unit the next day, he was placed in pre-trial confinement and later discharged.

	b.  During his separation processing it was noted he had a passive-dependent personality, that seemed a "catch all" for black men at the time.  He was also told that his discharge would be upgraded within 3 years.


	c.  He adds that his previous attempts to locate his military records have been unsuccessful.  However, he recently learned that his discharge has not been upgraded.

3.  The applicant states he provides copies of all of the military and medical records he has collected, including his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); however, he provided only two support letters with his application.

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 was inducted into the Army of the United States on 24 January 1968.  He was awarded military occupational specialty 57A (Duty Soldier).  He was assigned to Vietnam on 20 September 1968.

3.  On 15 February 1969, court-martial charges were preferred against the applicant for:

* wrongfully and willfully discharging a firearm in the billets area of his unit on 11 February 1969 under circumstances such as to endanger human life
* wrongfully possessing 22 grams of marijuana on 11 February 1969
* wrongfully possessing 29 grams of marijuana on 12 February 1969

4.  On 8 April 1969, having consulted with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.


	a.  He acknowledged that if his request was accepted that he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge.

	b.  He was advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	c.  The applicant and his counsel placed their signatures on the document.

5.  On 3 May 1969, the applicant was evaluated by an Army psychiatrist, Mental Hygiene Consultation Services, 935th Medical Detachment, U.S. Army Vietnam.

	a.  He noted that, since age 17, the applicant had a history of aggressive behavior while under the influence of alcohol.  Since in Vietnam, he had resorted to the use of marijuana and other drugs.  Regarding the offenses for which he was charged, either alcohol or a combination of alcohol and drugs were in the applicant's body at the time of the offenses.

	b.  His diagnosis of the applicant shows "Passive Dependent Personality, chronic, severe, manifested by excessive alcohol and drug use with many unmet dependency needs."

	c.  The applicant was psychiatrically cleared for any administrative separation action deemed appropriate by his command.

6.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

7.  On 1 June 1969, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  A Surgeon General Form 84 (Clinical Record Cover Sheet), dated 12 June 1969, shows the applicant was diagnosed with a passive-dependent personality by a physician at Madigan General Hospital, Tacoma, WA.  It also shows he was discharged from the hospital for separation processing.


9.  The applicant's DD Form 214 shows he was discharged from the Army on
12 June 1969 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with service characterized as under conditions other than honorable and issued an Undesirable Discharge Certificate.  He completed 1 year, 4 months, and 17 days of total active service.

10.  There is no evidence of record and the applicant did not provide any evidence that shows he was advised his characterization of service would be automatically upgraded within 3 years of the date of his discharge.

11.  On 7 August 1973, the applicant was notified that the Army Discharge Review Board determined he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

12.  In support of his application, the applicant provides:

	a.  A letter from his mother, dated 28 January 2013.  She states the applicant was a good person before being drafted into the Army.  He told her that he was afraid to go into the Army, but he did not refuse to go.  When he returned home, he was a very different person.  His attitude had changed and he wasn't the same son she had raised.

	b.  A letter from his brother, dated 28 January 2013.  He states when he saw his brother in Vietnam about nine months after he had been drafted and again when he returned from Vietnam, the applicant's attitude had changed completely.  He states the applicant was not violent prior to being inducted and that his service in the Army affected him in a very negative way.  He adds that the Army failed to properly diagnose and treat his brother for his medical condition prior to discharging him.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because of unfair racial conditions, he was given a generic diagnosis to expedite his separation processing, and he was told that his discharge would be upgraded within 3 years.

2.  Despite the applicant's contentions, there is no evidence of record and he provides insufficient evidence to show that he was treated unfairly because of his race, that an erroneous medical diagnosis was made, or that he was advised that his discharge would be upgraded within 3 years of the date of his discharge.  Thus, the applicant's contentions are not supported by the evidence of record.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.  As such, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.

5.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20130003422



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ABCMR Record of Proceedings (cont)                                         AR20130003422



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