IN THE CASE OF:	  

		BOARD DATE:	    22 April 2014

		DOCKET NUMBER:  AR20130013767 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he did not recognize the opportunity to seek an upgrade to his discharge until after the Department of Veterans Affairs (VA) denied he was a veteran in 2008.  Based on his service in Vietnam and his Bronze Star Medal and Army Commendation Medal citations he believes the character of his service was inequitable.

3.  The applicant provides argument from his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant served with distinction in Vietnam for 18 months. His evaluations were excellent and he was awarded several decorations recognizing that service, including the Bronze Star Medal.  Within his first year of service he was promoted from E-1 to E-5.

	a.  For his service in Vietnam between June 1969 and November 1969 he was presented the Army Commendation Medal.  His citation read, in part, "he astutely surmounted extremely adverse conditions to obtain consistently superior results…. His unrelenting loyalty, initiative and perseverance brought him wide acclaim and inspired others to strive for maximum achievement."

	b.  In December 1969 the meteorology officer of his section wrote his parents and stated that he was "doing an excellent job.  With his attitude and devotion to duty he has helped keep the meteorology section in first place…"

	c.  For his service between June 1969 and June 1970 he was presented the Bronze Star Medal.  His citation read, in part, "he consistently manifested exemplary professionalism and initiative in obtaining outstanding results.  His rapid assessment and solution of numerous problems inherent in a combat environment greatly enhanced the allied effectiveness…"

	d.  The National Personnel Records Center verified he was also entitled to the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Expert Marksmanship Qualification Badge with Rifle Bar
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

	e.  His VA claims file contains a short, undated, newspaper clipping that, along with his service treatment records, appears to suggest entitlement to a Purple Heart.  Service treatment records dated 11 and 16 March 1970 document a laceration to his forehead and a laceration of his right forearm, respectively.  However, neither entry in his treatment records notes the cause of the injuries.

	f.  Throughout his tour in Vietnam his conduct and efficiency ratings were consistently “excellent”.

	g.  He apparently manifested some mental distress and sought treatment on
5 November 1970 and was prescribed Librium.

	h.  Upon his return stateside and assignment to Fort Lee, VA, his records show periods of him being absent without leave (AWOL), including a conviction by a special court-martial in May 1971 for being AWOL.  In July 1971, a psychiatric evaluation diagnosed him with a character and behavior disorder, inadequate personality.  The evaluation determined the applicant was not amenable to treatment or rehabilitation and that his social history revealed a long-standing difficulty with authority relationships.

	i.  In October 1971, the applicant's command requested an Undesirable Discharge Certificate be issued due to his frequent periods of AWOL and his anti-military attitude.

	j.  In November 1992, he injured his back severely enough for the Social Security Administration to determine he was totally disabled and entitled to disability insurance benefits.

	k.  The applicant had prepared a three-page statement for the VA describing his frustration with his initial experiences at the Pentagon and the depth of his regret.

		(1)  Upon his return from Vietnam he went to the Pentagon to request his orders be changed from Germany to Fort Monmouth, NJ.  His orders were ultimately changed to Fort Lee, VA.  While at Fort Lee, he was able to go home, to New Jersey, on weekends.  He got home on Saturday morning and had to leave on Sunday night.  However, he had to pull Charge of Quarters every second or third week.

		(2)  He began feeling like everyone was going to show him he wasn't special just because he had served two tours (in Vietnam).  His friends were telling him how bad the war was and the Army didn't care about him.  He really felt that way.  His pregnant girlfriend threatened suicide if he wasn't with her.  His car broke down and he hitchhiked to Fort Lee and home again.

		(3)  He didn't know what happened to him after coming home from Vietnam.  He was confused and angry.  He thought of suicide and killing others.  He sought help from priests and psychiatrists at the Lebanon VA.

	l.  The applicant did not know there was a Special Discharge Review Program (SDRP) available for a limited time in 1979.  It is likely he would have met the criteria for an upgrade at that time.  Further, had he been granted an SDRP upgrade, he likely would have had it confirmed under the subsequently-issued uniform standards.

	m.  The applicant served more than the normal tour in Vietnam.  His citations demonstrated his tremendous service under difficult conditions.  His service treatment records document injuries he suffered and developing medical conditions.  His administrative disciplinary records plainly document his infractions but his rash series of AWOLs followed extended outstanding service.

2.  Counsel provides:

* an undated newspaper article
* two Standard Forms (SF) 600 (Chronological Record of Medical Care)
* Department of Health and Human Services, Social Security Administration Notice of Decision - Fully Favorable, dated 5 April 1995
* VA Form 21-4138 (Statement in Support of Claim)
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.  On 10 December 1968, he was inducted into the Army of the United States.  On 13 December 1968, he enlisted in the Regular Army for 3 years.

3.  He was assigned to Headquarters and Headquarters Battery, 5th Battalion, 5th Artillery in the Republic of Vietnam from 6 July 1969 to 24 December 1970.  During his tour in Vietnam he was awarded one Bronze Star Medal and two Army Commendation Medals for meritorious service.  He was promoted to specialist five (SP5)/pay grade E-5 on 5 November 1969.

4.  An SF 600 submitted by counsel shows treatment for a laceration to the applicant's forehead on 11 March 1970 and treatment for a laceration to his right forearm on 16 March 1970.  Neither entry shows the cause of these injuries.

5.  An SF 600, submitted by counsel, shows that on 5 November 1970 the applicant received treatment due to an argument with his section chief.  He had stated he was very nervous.  He was prescribed Librium.

6.  On 9 February 1971, he was assigned to the U.S. Army General Equipment Test Activity at Fort Lee, VA.

7.  On 18 May 1971, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 8 March 1971 until on or about 13 April 1971.  His sentence included a reduction to private first class/pay grade E-3.  On 24 May 1971, the sentence was approved by the convening authority.

8.  On 27 July 1971, court-martial charges were preferred against the applicant for being AWOL from on or about 6 July 1971 until on or about 22 July 1971.
9.  On 28 July 1971, the applicant received a psychiatric evaluation by a captain, Medical Service Corps, Chief Social Work Officer, Mental Hygiene Consultation Service (MHCS)  that was reviewed by a major, Medical Corps, Chief, MHCS, Fort Lee.  The examiner stated:

	a.  The diagnosis was found to be:  character and behavior disorder, inadequate personality.

	b.  The diagnosis most appropriately fell within the purview of Army 635-212 (Discharge, Unfitness and Unsuitability).

	c.  The condition and/or problems presented by the applicant were not, in the opinion of the examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty, and it was unlikely that efforts to rehabilitate or develop him into a satisfactory member of the military would be successful.

	d.  There was no mental defect or apparent physical defect sufficient to warrant separation through medical channels and no apparent medical contradiction for administrative separation.

	e.  He was mentally responsible both to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

	f.  The applicant was referred by a chaplain in regard to his desire to be out of the Army.  Reportedly, his experiences in Vietnam had solidified his feelings about military service.  He had applied for a conscientious objector discharge but this was not allowed.  He then began thinking about getting out of the Army based on his feelings toward the Army and war in general.  However, his parents and his girlfriend were against this move and expressed their desire that he remain in the military.  He had subsequently broken up with his girlfriend and felt no pressure to further remain in the service.

	g.  The applicant's social history revealed a long-standing difficulty with authority relationships.  It was also apparent that he had difficulty controlling his emotional responses and allowed himself to overact to conflict with authority in social situations.  He tended to be highly excitable when frustrated.  However, he could respond appropriately to limits if they were consistently set.

	h.  The applicant was psychiatrically cleared for any administrative action command deemed necessary.

10.  On 19 October 1971, additional court-martial charges were preferred against the applicant for being AWOL from on or about 30 July 1971 until on or about 
7 October 1971.

11.  On 20 October 1971, he voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* making a statement in his own behalf (not available in separation package)
* afforded the opportunity to speak with counsel prior to making his request
* advised he might be furnished an Undesirable Discharge Certificate

12.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

13.  On 22 October 1971, the Staff Judge Advocate reviewed the applicant's request for discharge and recommended approval with the issuance of an Undesirable Discharge Certificate.

14.  On 22 October 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be reduced to the lowest enlisted grade and that he be issued an Undesirable Discharge Certificate.

15.  On 26 October 1971, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service with an undesirable discharge.  He completed 2 years, 6 months, and 9 days of active service that was characterized as under conditions other than honorable.  He had 125 days of time lost.

16.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

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

	a.  Chapter 10, in effect at the time, stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, at the time an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  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.

18.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  

19.  On 8 October 1978, Public Law 95-126 was enacted.  This legislation required that the Service Departments establish historically consistent uniform standards for discharge reviews.  Previous upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards.  Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  The SF 600 submitted by counsel shows the applicant was treated for a laceration to his forehead on 11 March and to his right forearm on 16 March 1970.  However, there is no indication in either entry as to how he received these lacerations.  Therefore, these treatments are considered to be routine treatment for acute and transitory conditions and are not mitigating factors concerning his misconduct or his discharge.

2.  A second SF 600 submitted by counsel shows the applicant was prescribed Librium on 5 November 1970 after an argument with his section chief.  The applicant also stated he was very nervous.  There is no record of any follow-up treatment or that he was continued on Librium for a period of time.  Therefore, this treatment is not considered a mitigating factor concerning his misconduct or his discharge.

3.  The applicant indicated in his statement to the VA that he had sought help from priests and psychiatrists at the Lebanon VA.  However, he did not indicate during what timeframe he sought this help.  He did not provide any evidence showing any treatment by a psychiatrist.  Therefore, this is not considered a mitigating factor concerning his misconduct or his discharge.

4.  According to the Report of Psychiatric Evaluation, dated 28 July 1971, his diagnosis of a character and behavior disorder, inadequate personality fell within the purview of Army Regulation 635-212 for discharge based on unsuitability.  However, before he could be processed for discharge, he again went AWOL on 30 July 1971.

5.  Counsel contends the applicant's discharge is inequitable due to his Vietnam service and his multiple citations.  However, many Soldiers completed their tours, sometimes multiple tours, in Vietnam and returned to the States to complete their enlistments and received honorable discharges.  Therefore, the applicant's Vietnam service cannot be used as the sole reason for upgrading a properly issued discharge.

6.  The applicant had been promoted to SP5, a position of authority and responsibility.  In promoting the applicant to SP5, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a SP5, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  The applicant violated this special trust and confidence.  

7.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  He acknowledged in his request he might be furnished an Undesirable Discharge Certificate.

8.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service. 

9.  His awards of the Bronze Star Medal and two Army Commendation Medals for meritorious service were noted.  However, they are insufficient to mitigate his multiple periods of AWOL for a total of 125 days and his abuse of a position of special trust and confidence.  Therefore, his period of service is considered to be unsatisfactory and there is no basis for upgrading his discharge.

10.  Although the applicant did not apply for a discharge upgrade under the SDRP, Public Law 95-126 required the Service Departments to establish historically consistent uniform standards for discharge reviews.  Using these uniform standards there is an insufficient basis for upgrading the applicant's 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)                                         AR20130013767



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013767



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1