IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130013059 


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 under other than honorable conditions discharge.

2.  The applicant states he received an administrative decision from the Department of Veterans Affairs (VA) on 12 June 2013 awarding him service-connected disability compensation for post-traumatic stress disorder (PTSD).  If he had received the proper treatment while in the service he would not have received an undesirable discharge in 1971. 

3.  The applicant provides:

* Multiple DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Multiple induction/enlistment contracts
* VA rating decision
* Civil conviction documents
* DA Form 20 (Enlisted Qualification Record)
* Separation packet
* Multiple Article 15s
* Multiple Military Police Reports
* Multiple medical examinations
* Report of Casualty and Western Union telegram
* Dental records
* Immunization records

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 records show he was inducted into the Army of the United States on 25 September 1961 and he held several quartermaster military occupational specialties.  He was honorably discharged on 22 April 1962 for the purpose of immediate enlistment in the Regular Army (RA). 

3.  He enlisted in the RA on 23 April 1962 and he served in Germany from on or about 28 May 1962 to on or about 22 July 1965.  He was again honorably discharged on 11 May 1964 for the purpose of immediate reenlistment in the RA. 

4.  He reenlisted in the RA on 12 May 1964.  He served in Vietnam, from on or about 18 May 1966 to on or about 17 April 1967; Germany from on or about 
23 April 1967 to on or about 3 March 1968; and again in Vietnam, from on or about 15 April 1968 to on or about 7 April 1969.  

5.  He was honorably discharged on 26 January 1969 for the purpose of immediate reenlistment.  He reenlisted in the RA on 27 January 1969 and he was assigned to Fort Bliss, TX. 

6.  On 4 May 1970, he departed his Fort Bliss unit in an absent without leave (AWOL) status.  He was apprehended by civil authorities on 28 May 1970 and confined in the El Paso County Jail pending trial for the possession and sale of narcotics.  He was released to military control on 28 May 1970.

7.  On 16 July 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 4 to 28 May 1970.  

8.  On 4 August 1970, he again accepted NJP under the provisions of Article 15 of the UCMJ for writing a check at the Post Exchange without having sufficient funds. 

9.  On 27 August 1970, he departed his unit in an AWOL status and he appears to have returned to military control on or about 12 September 1970.  

10.  On 12 October 1970, while pending a special court-martial for the previous AWOL, he departed his unit in an AWOL status and on 6 November 1970, he was dropped from the Army rolls as a deserter.  

11.  He was returned from his deserter status on 26 November 1970 and he was confined in the El Paso County Jail pending trial for his civilian charges. 

12.  On 18 December 1970, he was tried by the 34th District Court, El Paso, TX, on the charge of perjury.  The court sentenced him to 4 years of confinement in the State Penitentiary (suspended) and placed him on probation for 4 years.  He later elected not to appeal his 4-year probation sentence. 

13.  On 12 January 1971, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for his civil conviction.  The immediate commander recommended an Undesirable Discharge Certificate.  

14.  On 12 January 1971, the applicant acknowledged receipt of the notification of separation action.  He later consulted with counsel and he was advised of the basis for the contemplated separation due to conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and appearance before a board of officers.  He elected not to submit a statement on his own behalf.  He further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. 

	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.


15.  On 11 February 1971, he was sentenced to 8 years of imprisonment for illegal possession of heroin and an additional 5 years for the sale of narcotic drugs.  He was transferred to Leavenworth Federal Penitentiary, Leavenworth, KS, on or about 2 March 1971. 

16.  On 16 February 1971, the applicant's immediate commander again initiated separation action against him in accordance with Army Regulation 635-206 by reason of conviction by civil court. 

17.  On 17 February 1971, his senior commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.  

18.  On 7 April 1971, the applicant's immediate commander resubmitted the separation packet with a full explanation of the notification process, applicant's acknowledgement, the reason for the delay, the applicant's subsequent conviction for the drug offense, and the legal review.  The immediate commander again recommended an Undesirable Discharge Certificate. 

19.  On 19 April 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for willful misconduct by reason of civil conviction and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 28 April 1971. 

20.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-206 with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 15 days of active service (during the period under review) and he had 287 days of lost time.  

21.  On 21 March 1978, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge.

22.  The applicant provides:  

	a.  Multiple enlistment/reenlistment documents and multiple DD Forms 214. 

	b.  Immunization and dental records. 

	c.  Multiple Casualty Reports and/or Western Union/Army messages pertaining to his illness (typhoid) while in Vietnam.

	d.  Multiple induction, enlistment, and/or reenlistment physicals that show he was in good health.  None diagnosed him with PTSD or any mental health issues. 

	e.  VA rating decision, dated 10 June 2013, that shows the VA awarded him service-connected disability compensation for PTSD as a result of a VA examination that was conducted on 30 May 2013. 

23.  Army Regulation 635-206, paragraph 24 provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

24.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policies and procedures for the separation of enlisted personnel.  

	a.  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.

	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 evidence of record shows the applicant was convicted by a civilian court of perjury.  He was sentenced to 4 years of confinement in the State Penitentiary (suspended) and placed on probation for 4 years.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified. While pending elimination for his civil court-conviction, he was again convicted by civil court for the charges of possession and sale of illegal drugs.  He was also sentenced to a lengthy prison term.  

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  Nothing in his records supports his contention that if he had received the proper treatment while in the service he would not have received an undesirable discharge in 1971.  Likewise, nothing supports his contention that a mental disease or illness caused him to go AWOL or to sell illegal drugs.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or mentally unfit at the time of his discharge.  Furthermore, the award of VA service-connected disability compensation for PTSD some 45 years later does not change the fact that his actions at the time clearly brought discredit upon himself and the Army. 

4.  His overall military service was marred with various types of misconduct that included two instances of NJP and an extensive history of AWOL in addition to his civilian convictions.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

5.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or an 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)                                         AR20130013059





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ABCMR Record of Proceedings (cont)                                         AR20130013059



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