IN THE CASE OF:	  

		BOARD DATE:  7 January 2014

		DOCKET NUMBER:  AR20130007996 


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 an honorable discharge.

2.  The applicant states he enlisted in the Army on 8 May 1969 after being a conscientious objector for the previous 5 years while enrolled in Abilene Christian University.  He was informed by the local recruiter that he had been drafted anyway but if he signed up for an additional year and training as a licensed clinical social worker he would not have to kill anyone.  

3.  He goes on to state that during his first 10 weeks at Fort Sam Houston he was informed that such was not the case.  However, he was then told that if he passed paramedic training and psychiatric technician training with high marks he would be trained as an electroencephalogram technician and would not be sent to the battlefield.  

4.  He also states that it became apparent that everyone was being sent to Vietnam so he told his first sergeant and commander that he would go absent without leave (AWOL) if he was forced to carry a weapon or harm anyone and that he wanted a discharge at that time.  He continues by stating that he started going AWOL and then turning himself in and each time his punishment got worse, first in the form of months of hard labor and then imprisonment in solitary confinement where his right hand was broken by military policemen and then he witnessed a fellow Soldier being hung by his thumbs from the rafters.  He concludes by stating that when he was released from confinement he was informed that he was being discharged and he was never to set foot on military property or he would be fined $10,000 and imprisoned for 2 years.

5.  The applicant provides a one-page letter explaining 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 enlisted in the Regular Army with a moral waiver on 8 May 1969 for a period of 3 years and training in Social Work/Psychology Procedures. 

3.  He completed his basic training at Fort Bliss, Texas and was transferred to Fort Sam Houston, Texas for his advanced individual training (AIT).  He completed training as a medical corpsman in military occupational specialty (MOS) 91A1O and was transferred to the 91F2O course (Neuropsychiatric Specialist).  He completed that course and was assigned on-the-job training in MOS 91F2O. 

4.  On 19 December 1969, he was assigned to the 91M (Electroencephalograph Specialist) course.  On 9 February 1970, he was dropped from the 91M course due to insufficient performance, lack of interest, failure to complete assignments, and failing tests.  He was reassigned as a duty Soldier within the student detachment.

5.  On 20 April 1970, the applicant was admitted to Chambers Pavilion due to an overdose of LSD.  He remained there until he was discharged on 24 April 1970 with a diagnosis of acute brain syndrome associated with LSD intoxication. 

6.  On 22 July 1970, he was apprehended when he delivered 23 grams of marijuana to an undercover criminal investigator on Fort Sam Houston.

7.  On 25 August 1970, he was convicted in civil court in Austin, Texas of possession of narcotic paraphernalia and received a sentence of 2 years probation.  He was in civil confinement from 25 August to 1 September 1970.

8.  On 31 August 1970, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to his use of illegal drugs.

9.  After consulting with defense counsel the applicant waived his rights and elected to submit a statement in his own behalf.  In his statement he asserted that he had not been subjected to military disciplinary actions during his 
16 months of service and desired that to be considered in determining the character of his service especially since he had injured himself and his family more than society.

10.  On 1 October 1970, he underwent a psychiatric evaluation and revealed that he had taken LSD on 30 to 40 occasions since entering the service and only five times since being discharged for LSD overdose.  He also indicated that after high school he attended a religious college in Texas but he was not interested in going to school because he felt he was being forced to go by his parents.  He subsequently dropped out of that school and attended another school which he also dropped out of.  He indicated that he had very little interest in remaining in the Army and hoped to be discharged.

11.  On 16 October 1970, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 
21 October 1970 under the provisions of Army Regulation 635-212 for unfitness due to drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana.  He had served 1 year, 5 months, and 1 day of active service and had 13 days of lost time due to civil confinement. 

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

14.  A review of his official records shows no indication that the applicant ever declared himself as a conscientious objector or submitted a request to be classified as such. 

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.  This regulation also 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's administrative discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.

2.  Accordingly, the type of discharge directed and the reasons appear to be appropriate considering all of the facts of the case.

3.  The applicant's contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service and the serious nature of his repeated offenses.  His service simply did not rise to the level of a general or honorable discharge.

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)                                         AR20130007996





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ABCMR Record of Proceedings (cont)                                         AR20130007996



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