BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013848 


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 undesirable discharge (UD). 

2.  The applicant states:

   a.  He was fine during basic training; however, as soon as he reached advanced individual training (AIT) he was introduced to drugs.  He made it through AIT and was stationed at Fort Ord, CA, where his peers involved him in more drug use.  In order to fit in, he used drugs with his peers.  He was sent to Vietnam at 19 years of age where he was stationed at Cu Chi, 12th Evacuation Hospital.  He was placed with a company of returnees who convinced him that the war was a mistake and the only way to cope was to take drugs.  This led him to rebel against the system.  

   b.  He was not able to cope with handling of the dead and he was only able to perform his duties if he was using drugs.  He needed to be released from the Army immediately and did not consider the outcome of the discharge he accepted at the time.  He thinks the Board should expunge his discharge due to the circumstances he faced at the time and continues to face in his life today.

3.  The applicant provides a copy of his Undesirable Discharge Certificate.





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, in pay grade E-1, on 5 March 1969, for 3 years.  He held military occupational specialty 91A (medical corpsman).  He was advanced to pay grade E-3 on 1 August 1969.  

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 8 July 1969 - failing to go to his appointed place of duty on 6 July 1969
* 25 September 1969 - being incapacitated to properly perform his duties as a result of previous indulgence in intoxicating liquor
* 21 October 1969 - failing to go to his appointed place of duty from 24 to 28 September 1970 and 5 to 7 October 1970; his punishment included a reduction to pay grade E-2
* 3 November 1969 - being absent without leave (AWOL) on 16 October 1969, failing to go to his appointed place of duty on 17 October 1969, and failing to obey a lawful order on 30 October 1969; his punishment included a reduction to pay grade E-1
* 10 December 1969 - being AWOL from 2 to 4 December 1969

4.  He was again advanced to pay grades E-2 on 28 October 1969 and E-3 on 26 March 1970.

5.  He served in Vietnam from 25 March 1970 through 24 March 1971.

6.  He again accepted NJP under Article 15, UCMJ, on/for:

* 14 April 1970 - going off limits without proper authority on 13 April 1970; his punishment included a reduction to pay grade E-2
* 24 April 1970 - absenting himself from his appointed place of duty on 21 April 1970; his punishment included a reduction to pay grade E-1
* 19 May 1970 - failing to obey a lawful order on 1 May 1970 and going off limits without proper authority on 2 May 1970
* 30 June 1970 - traveling in the Saigon area without proper authority on 21 June 1970

7.  On 18 May 1970, the applicant's unit commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation
635-212 (Unfitness) based on his frequent involvement in incidents demonstrating complete disregard for good order and discipline together with his rebellious attitude toward authority and his supervisors.

8.  On 18 May 1970, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he could receive a UD and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf. 

9.  A Certificate, dated 21 May 1970, shows the applicant underwent a neuropsychiatric examination.  He was diagnosed with a character disorder, passive aggressive personality manifested by apathy, poor impulse control, obstructionist thinking, negative attitude, immaturity, and difficulty with authority figures; chronic, severe, not in the line of duty and existed prior to service.  The examining psychiatrist stated the applicant met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and there was no psychiatric disease or defect which warranted disposition through medical channels.  He recommended the applicant be administratively separated under the provisions of Army Regulation 635-212.

10.  On 28 May 1970, the applicant's unit commander recommended approval of the applicant's discharge with a UD.  He stated the applicant's presence in any military unit was a definite liability and a bar to reenlistment had been initiated.

11.  On 11 June 1970, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge with a UD.

12.  On 14 July 1970, the separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

13.  He was discharged accordingly on 27 July 1970.  He completed 1 year, 4 months, and 23 days of net active service with no time lost.

14.  There is no evidence in his record which shows he had a drug problem at the time.

15.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation stated an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations) states in:

   a.  Paragraph 3-7a - an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service generally meets the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - a general discharge is a separation from the Army under honorable condition.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's unit commander recommended the applicant be discharged for unfitness based on his demonstrated frequent involvement in incidents demonstrating complete disregard for good order and discipline together with his rebellious attitude toward authority and his supervisors.  He acknowledged the proposed separation action and the issuance of a UD.  The separation authority approved his discharge and on 27 July 1970, he was discharged accordingly.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  There is no evidence of record and he provided none showing any drug use prevented the satisfactorily completion of his service.  His misconduct started long before he arrived in Vietnam.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the 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)                                         AR20130013848



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013848



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1