BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130022139 


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 his discharge should have been a general under honorable conditions or a medical.  He was diagnosed with depression with paranoia and anxiety as well as emotional unstable personality; all of these conditions contributed to his behavior.

3.  The applicant provides:

* Self-authored letter
* Letter to the Department of Veterans Affairs
* Letter from the Superior Court, Criminal Division, Los Angeles, CA
* Incomplete separation physical
* VA progress notes
* Recent psychological evaluation

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 enlisted in the Regular Army for 3 years on 6 December 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 62D (Construction Machine Operator).

3.  On 3 February 1968, while still in training, at Fort Leonard Wood, MO, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from a superior noncommissioned officer (NCO). 

4.  He served in Vietnam from on or about 30 January 1969 to an unknown date. He was awarded or authorized the National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal. 

5.  On 4 August 1969, in Vietnam, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his place of duty on 3 August 1969.  

6.  On 7 August 1969, also in Vietnam, he again accepted NJP under the provisions of Article 15 of the UCMJ for being absent from his place of duty on 7 August 1969. 

7.  On 30 August 1969, in Vietnam, he was convicted by a special court-martial of one specification of failing to go at the time prescribed to his appointed place of duty and one specification of being disrespectful toward a noncommissioned officer.  The court sentenced him to confinement at hard labor for 4 months, a forfeiture of $61.00 per month for 4 months, and reduction to the lowest enlisted grade.  On 5 September 1969, the convening authority approved a lesser sentence by suspending the adjudged sentence to confinement.

8.  On 23 September 1969, also in Vietnam, he again accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a superior NCO and for being disrespectful toward another NCO.  

9.  On 17 December 1969, in Vietnam, he was again convicted by a special court-martial of one specification of willfully disobeying a lawful order from a superior NCO, one specification of being disrespectful toward another NCO, and one specification of being absent without leave (AWOL) from 1 to 3 December 1969.  The court sentenced him to a forfeiture of $82.00 pay per month for 6 months, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade.  On 26 December 1969, the convening authority approved the sentence. 

10.  On 10 January 1970, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct.  He was furnished with a copy of this bar but he elected not to submit a statement on his own behalf.  After review by the chain of command, the approval authority approved the bar.

11.  On 15 January 1970, the applicant underwent a mental status evaluation.  The military psychiatrist stated the applicant presented a vague, somewhat over confident manner and at times he seemed indifferent.  He was no longer motivated for military duty and related he would probably have difficulties.  The psychiatrist opined the applicant was an immature man who although bright, was egotistical and tended to be carried away with his own self, decisions, and ability.  His diagnosis was that of passive-aggressive personality, chronic, mild manifested by difficulty tolerating authority and overconfidence in his own abilities.  He met retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and did not have a psychiatric disease or defect which warranted disposition through medical channels.  He was cleared for administrative separation as deemed appropriate by his chain of command. 

12.  On 16 January 1970, the applicant underwent a medical examination in connection with this separation action.  He hand-wrote the entry "I am in good health."  The military doctor pointed out the applicant's passive-aggressive diagnosis and found him medically qualified for retention.   

13.  On 17 January 1970, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  The immediate commander cited the specific reasons as the applicant's continued disrespect, failure to be at his appointed place of duty, and being AWOL. 

14.  On 17 January 1970, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, 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, waived personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged he understood: 

* he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him
* as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 

15.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness with an under other than honorable conditions discharge.  The immediate commander stated: 

* the applicant displayed habits and traits of character manifested by repeated court-martial offenses
* he habitually shirked his duties and he had an overall disregard for military authorities
* he did not respond to counseling or rehabilitative efforts; he was incapable of becoming a satisfactory Soldier
* his performance was characterized by a lack of appropriate interest and manifested by a negative attitude toward those responsibilities required of him as a Soldier

16.  The applicant's senior commander recommended approval of the discharge action with the issuance of an undesirable discharge. 

17.  Consistent with the chain of command's recommendations, on 5 February 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 10 February 1970. 

18.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness with a separation program number (SPN) of 28B (unfitness).  His character of service was under other than honorable conditions.  He completed 1 year, 11 months, and 19 days of total active service and he had 76 days of lost time.

19.  On 24 June 1971, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  The ADRB voted unanimously to deny his petition for an upgrade of his discharge.

20.  The applicant provides:

	a.  A self-authored statement, dated 10 December 2013, wherein he describes some of his current illnesses.  He displays his love of serving his country and apologizes for his misconduct. 

	b.  A letter, dated 4 October 2012, to the VA requesting the VA evaluate his discharge and considers his military service. 

	c.  A letter, dated 30 October 2013, from the Superior Court, Criminal Division, Los Angeles, CA, wherein a judge states the applicant had been a member of a private investigator panel since June 1990 and he has handled several complex cases.

	d.  Consultation Sheet, undated, confirming his diagnosis of depression and paranoia. 

	e.  VA progress notes, dated on various dates in March 2013.  

	f.  A recent psychological report, dated 17 November 2013, showing a diagnosis of post-traumatic stress disorder, major depressive disorder without psychotic features, and insomnia. 

21.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

22.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

23.  Army Regulation 635-200, 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.  

24.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his multiple instances of NJP, two court-martial convictions, a repeated pattern of AWOL, a bar to reenlistment, and an attitude of complete disregard of the Army.  Accordingly, his chain of command initiated elimination action against him.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of service is commensurate with his overall record of military service.  

2.  Contrary to his contention that his misconduct was caused by his mental conditions, the evidence of record clearly shows he underwent a psychiatric evaluation in connection with his separation action.  His diagnosis was that of passive-aggressive personality, chronic, mild manifested by difficulty tolerating authority and overconfidence in his own abilities.  However, he met retention standards of Army Regulation 40-501 and did not have a psychiatric disease or defect which warranted disposition through medical channels.  He was cleared for administrative separation as deemed appropriate by his chain of command.

3.  Medical separation is reserved for those whose service is interrupted by a medical condition that failed retention standards and rendered them unfit.  The applicant's service was interrupted by his repeated misconduct, not by any medical or mental condition.  


4.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service clearly did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, he is not entitled to an upgrade of his discharge to either 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)                                         AR20130022139



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130022139



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1