IN THE CASE OF:	  

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130020858 


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 reconsideration of his previous request for an upgrade of his dishonorable discharge.

2.  As a new issue, he requests, in effect:

* a change in the narrative reason for his discharge, from "other than desertion (courts-martial)" to "medical"
* correction of errors in his medical records

3.  The applicant states:

   a.  He was told a medical or an administrative discharge would be issued.  There are errors in his medical report.  There were many medical and hardship issues that were not addressed at the court-martial.  He has statements from his mother and sister verifying these errors and the pertinent records enclosed, along with documentation of his six years as a professor in South Korea, showing rehabilitation.

   b.  He is also including letters from lawyers indicating his medical records were not received in a timely manner and records from two psychiatrists indicating an administrative separation was warranted.  He has reference letters from his university employers.  He would appreciate consideration of this request to honor his father's memory and to improve his employment opportunities.  His father was a retired major in the Air Force and a World War II veteran.

   c.  Dr. Gxxxx stated in the enclosed records that he had some seizures, two from injuries before entering the Army in October 1966, and during his first year of college.  There were errors in his medical records concerning problems he had with his father and being forced to withdraw from school.  He did not steal the family car, his father took his car, and he did not flunk out of college.  He withdrew with incompletes and he was never associated with any gangs.  He did not know any and worked too hard anyway to go out.

   d.  When he was drafted, because his father worked at a rocket factory as a machinist and union steward, he did not try to evade it or cause his father any trouble.  He finished number six in physical training at basic training and was offered the officer candidate school.  He had other career plans and he refused.

   e.  After basic training, he and his father reconciled and he went home at Christmas.  After New Year's, he got strep throat and went to an Air Force hospital.  While standing at the admission desk he fainted, was incontinent, and had a seizure and temporary amnesia.  After a few days in the hospital he learned his father had died from a heart attack.  This was the greatest shock that he never recovered from.

   f.  He then had to go to radio school and finished top of the class.  He was sent to Fort Lewis, WA, where he smoked marijuana with the duty Soldiers.  His girlfriend left him and he had a falling out with his best friend.  All of these traumas combined together and affected his judgments.  When orders came for Vietnam, he did not feel up to it.  The night before a concert he took some Lysergic Acid Diethylamide (LSD) and he began to lose control while on a bus going home.  When he arrived home, his mother drove him to the hospital.  He was diagnosed and received treatment, spending three days in the psychiatric ward, where Dr. Mxxxx stated that he should receive an administrative separation.

   g.  On the plane back to duty, he had more paranoia, he did not feel normal, and upon arrival the Air Force doctor stated he should be medically discharged.  The Army doctor recommended an administrative separation.  He became unmotivated to follow orders and tried to bring attention to what he thought were the errors.  After a few months there, he had another break and spent another ten days in the psychiatric ward.  None of this came to light at his court-marital, just the fact he had refused to go to a formation and laundry detail.

   h.  He was later released from Fort Leavenworth, KS, for good behavior, completing half of his sentence, and he was the first chair trumpet player in the band there.  He had completed 13 months of active duty.  He has had difficult years recovering from it all.  He went back to college in 1978 and earned a Master's degree in Asian History, was a certified tennis instructor, and taught English as a foreign language certifier.  All of this proves rehabilitation and good intentions; though not perfect, he continued to try.  If he had some peace of mind from a clean record, he can better help his mother with her Alzheimer's disease, as she is 91 years of age.

   i.  In 1988, he joined a recovery group out of denial.  He also had border line alcoholism.  He had been clean and straight since.  He also managed to finish graduate school and retired as a professor.  He currently teaches tennis, plays music, and volunteers.  He requests whatever discharge is appropriate in view of the subsequent events and mitigating circumstances now more fully brought to light. This could be administrative or if an honorable discharge is possible.  The religious experiences he had in the psychiatric ward was a contact from God that brought him back to some sanity.  

4.  The applicant provides copies of the following:

* Newsletter pertaining to his father's heart attack
* two Standard Forms (SF) 502 (Clinical Record – Narrative Summary)
* SF 506 (Clinical Record – History-Part I)
* three Air Force Forms 565-4 (Clinical Record Cover Sheet)
* two psychiatric evaluation reports
* DA Form 8-274 (Medical Record – Physical Profile Record)
* Bachelor of Arts and Master of Arts diplomas
* California State University transcript
* Text-and-Talk Academy certificate
* four reference letters
* Korean employment certificate
* two alleged pictures of himself
* letter from the National Personnel Records Center (NPRC)

CONSIDERATION OF EVIDENCE:

1.  With respect to reconsideration of his previous request for an upgrade of his dishonorable discharge:

   a.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number 71-3193 on 11 November 1971, in Docket Number 71-3193A on 5 August 1975, and in a letter, dated 19 June 1978.

   b.  The applicant does not meet the two-tiered criteria for reconsideration of this issue in that his request is neither submitted within one year of the original decision nor does it contain any new evidence.
   
   c.  Army Regulation 15-185 (ABCMR), paragraph 2-15b, governs requests for reconsideration of correction of military record and allows an applicant to request reconsideration for an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  As a result, the issue of an upgrade of his dishonorable discharge will not be discussed further in this Record of Proceedings.

2.  The applicant's requests a correction of errors in his medical records.  This is new issue and will be considered by the Board.

3.  The applicant was inducted into the Army of the United States on 20 October 1966.  He served as a radio operator.  He was advanced to pay grade E-2 on 20 February 1967.

4.  On 7 June 1967, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL).

5.  His record contains and he provided copies of the following:

   a.  An SF 502, dated 4 July 1967, which shows he was admitted to the Inpatient Psychiatric Service of the David Grant Air Force Hospital on that date.  He was diagnosed with a psychotic reaction, acute, severe, unclassified, manifested by clouding of consciousness, confusion, flight of ideas, auditory hallucinations, thought disorder, and impairments of insight and judgment.  No impairment was found for further military duty.  

   b.  Two Air Force Forms 565-4, dated 7 July 1967, which show he was diagnosed with a psychotic reaction, acute, severe, unclassified.  His impairment was found to be moderate for military duty, moderate for civilian pursuits, both social and economic.

   c.  A Report of Psychiatric Evaluation, dated 24 July 1967, wherein the examining psychiatrist stated:

		(1)  The applicant went AWOL from his proper duty station on 30 June 1967 pending orders for Vietnam.  
		
		(2)  The applicant 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 processing.

		(3)  The nature of the applicant revealed a character behavior disorder of lifelong duration and it could be strongly presumed that regardless of any administrative action, that pattern of behavior would tend to exist permanently.

		(4)  The applicant met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).

		(5)  Due to the presence of a severe personality disorder, manifested primarily by immaturity and antisocial behavior, the applicant with more than four months of active duty at the time of that evaluation appropriately could be administratively separated under the provisions of Army Regulation 635-212 (Unfitness).

   c.  An SF 502, dated 18 September 1967, which shows he was diagnosed with Schizophrenic reaction, catatonic type or adverse reaction to psychedelic drugs and admitted to the hospital.  He was discharged from the hospital on 27 September 1967.

   d.  An undated SF 504 wherein the Chief, Inpatient Psychiatry, stated that the applicant could not follow commands, had been unable to feed himself,  and presented a limp and flaccid posture.  The plan was for a neurological and medical evaluation.

   f.  A DA Form 8-274, dated 27 September 1967, which shows he was found to be medically qualified for duty.  

6.  On 23 December 1967, he was convicted by a general court-martial of one specification of being AWOL from 30 June through 4 July 1967 and three specifications of willfully disobeying lawful orders from his superior commissioned officer on 21 July 1967.  He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor to three years, and a dishonorable discharge.

7.  On 15 March 1968, the convening authority approved the sentence and the record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 24 May 1968, he requested restoration to duty in order to earn a discharge under honorable conditions.  His request was denied on 17 July 1968.
9.  On 14 August 1968, the U.S. Army Court of Military Review approved and affirmed his sentence to a dishonorable discharge.

10.  On 14 October 1968, the U.S. Army Court of Military Appeals denied his petition for a review of his case.

11.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 278, dated 17 October 1968, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's sentence duly executed.

12.  An SF 88 (Report of Medical Examination) shows he underwent a medical examination on 29 October 1968 for the purpose of his punitive discharge.  He was found qualified for separation.

13.  Accordingly, he was discharged in pay grade E-1 on 18 November 1968, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 11-1a, as a result of a court-martial.  His service was characterized as dishonorable.  He completed 8 months and 26 days of net active service with 492 days of time lost.

14.  He provides copies of the following:

	a.  A newsletter, dated 25 January 1967, which pertains to his father succumbing to a heart attack.
   
	b.  The first page of a letter, dated 16 October 1967, which appears to be from a lawyer and pertains to his visit with the applicant while he was in the stockade.
   
   c.  A Bachelor of Arts diploma, dated 12 June 1987 and Master of Arts diploma, dated 31 May 1993; California State University transcript; a Text-and-Talk Academy certificate, dated 15 February 200; a Korean employment certificate; and two alleged pictures of himself.

   d.  Four reference letters, two of which were dated 27 August 2009 and 17 October 2011, wherein the individuals referenced the applicant's employment at the Sonkla Nakrin University in Suratthani, Thailand from 2002 to 2003; Incheon Foreign Language Training Center in Incheon, Korea, in 2005; Kookmin University in Seoul, Korea, from 2006 to 2010; and Changwon National University as an a English professor.  

   e.  A letter from the NPRC, dated 28 October 2013, wherein he was advised to contact the Department of Veterans Affairs (VA) to obtain copies of his additional service medical records.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 11 of the regulation stated an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed.  An enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed.

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

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  The regulation states in:

   a.  Paragraph 3-4a(2) - Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefit: the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	c.  Chapter 4 - a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for physical disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the documentation he provided were carefully considered.

2.  There is no available evidence and he did not provide sufficient evidence showing he was found unfit to perform his military duties at the time and he required physical disability processing.  The examining psychiatrist recommended his administrative separation under Army Regulation 635-212.  Further, his admitted use of LSD would have prohibited medical separation since the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have occurred during a period of AWOL.

3.  At the time, and in accordance with Army regulations, a dishonorable discharge was considered appropriate for these types of discharges.  In considering the passage of time and his separation under chapter 11, he was properly discharged in accordance pertinent regulations with due process. 

4.  Without evidence to the contrary, it appears his punitive separation was accomplished in compliance with applicable laws and regulations with no procedural errors which would tend to jeopardize his rights.  His narrative reason for separation is appropriate given the facts of this case.  There is no basis for changing his narrative reason to show he was separated by reason of medical disability.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency for a medical discharge is not warranted in this case.

6.  There is also no evidence of record and he did not provided sufficient evidence showing the medical records are inaccurate, unjust, or biased.  It appears the noted information presents a fair diagnosis of the applicant at the time.

7.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  Therefore, absent convincing independent and verifiable evidence to the contrary, it is presumed that the applicant's military service record, included his medical records, were correct at the time.





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)                                         AR20130020858





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ABCMR Record of Proceedings (cont)                                         AR20130020858



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