IN THE CASE OF:	  

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140002927 


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 or honorable discharge.

2.  The applicant states he was given an undesirable discharge from the Army based on a report of his commander, Captain (CPT) WWG, dated 1 December 1970 attached to a mental hygiene consultation and a Brief Clinical Abstract by CPT LPS, Medical Corps (MC), Psychiatrist and CPT RMC, social worker.  

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4142 (Authorization and Consent to Release Information to the VA).

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 31 October 1969, he enlisted in the Regular Army for 3 years.  

3.  He received nonjudicial punishment (NJP) on:

* 18 February 1970 for failing to go at the time prescribe to his appointed place of duty
* 6 July 1970 for being absent without leave (AWOL) from 2-26 June 1970

4.  On 5 November 1970, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 11 August 1970 to on or about 21 October 1970.  His sentence consisted of 71 days confinement and forfeiture of $71.00 per month for 3 months.

5.  On 1 December 1970, he was examined at the Mental Hygiene Consultation Service, Fort Riley, KS.  CPT LPS, MC, Psychiatrist and CPT RMC, social worker provided a Brief Clinical Abstract that stated:

	a.  On 16 November 1970, the applicant was transferred to the U.S. Army Correctional Training Facility (CTF) from the Ford Ord, CA stockade.  He was referred for psychiatric evaluation by his commander because of an alleged history of being under psychiatric care.

	b.  He gave a history of homosexuality beginning at age 10 and continuing into the present.  He expressed the abnormal sexual identity in terms of a real conflict for him.  He did express sexual contact and emotional relationships with females.  He had a civilian arrest record of vandalism, theft, and child molestation.  For the latter he received 2 months in a psychiatric ward and 
10 months in a Salvation Army rehabilitation center.

	c.  He had a drug history beginning at approximately age 15, with sniffing glue and stated he began using drugs more frequently at age 17.  His confinement was appealed when people concerned with his welfare, a doctor and his wife, agreed to take him into their custody.

	d.  Shortly after his release, he enlisted into the Army to try and relieve his problem of drug abuse.  Upon completion of basic combat and advanced individual training he went AWOL three times totaling 4 months.  He gave girlfriend problems and damage to a military vehicle as reasons for his actions; however, non-verbally he expressed feelings of very low self-esteem, patterns of self-defeating behavior, and extreme need for ventilation.  He stated he would not go back to duty because he wanted to find professional help in civilian life.

	e.  There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He did not manifest a psychosis or neurosis and his further management was the commander's prerogative.  The examiner believed he would not adjust to military service and further rehabilitative efforts would be non-productive.

	f.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

6.  On 11 December 1970, the applicant made a sworn statement.  He stated:

	a.  His first act of homosexuality happened at age 12 with a friend when he was drunk.  From that point on he began to discover many people liked to do it so he participated in these acts for his own satisfaction and for money.  He made quite a bit of money in Los Angeles doing things while he was AWOL.  He had also committed several sex acts with girls from the ages of 5 to 8.  His mother caught him with the little girl next door and pressed charges.  He was brought to court for being a mentally  disordered sex offender and being a menace to his brother and sister.  He participated in acts with his sister as well as 25 acts with other little girls.  While in the Army he had had the opportunity to molest 
2 younger girls.

	b.  When he was 15 years old he used to sniff paint and then paint thinner.  At age 17 he was introduced to acid.  He had used acid about 20 times at about 
2 tablets each time.  He then began to take other drugs such as marijuana, bennies, mescaline, reds, yellows, and rainbows.  He had smoked about 
60 sticks of grass in the last 2 or 3 years.  He also used a lot of bennies, taking about 5 to 10 a day.  Since he had been in the Army he had taken mostly grass and bennies.  He also started using mescaline in the Army.  He was not sure if he would continue to use drugs, but thought he probably would.

7.  The applicant's complete separation package was not available in his Military Personnel Records Jacket (MPRJ).  

8.  His commander's notification that he was being recommended for separation from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) was not available for review.  However, in this notification, the commander would have advised the applicant of his right to:

* present his case before a board of officers
* submit any statements in his behalf
* be represented by military counsel appointed by the convening authority
* military counsel of his own choice, provided the requested counsel is reasonably available 
* civilian counsel at his own expense

9.  On 17 December 1970, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of Army Regulation 635-212 for unfitness.  The applicant:

* waived consideration by a board of officers 
* waived a personal appearance  
* stated that he was submitting statements in his own behalf 
* waived representation by counsel   

10.  The applicant acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

11.  On 18 December 1970, he submitted a sworn statement concerning his discharge.  He stated:

	a.  He felt he was qualified for an unsuitability discharge.  He didn't deny what he had said in his statement but his reasons for discharge were of a medical basis and he had these problems when he entered the service.  He entered the service so he could help himself and in the future help his family.  

	b.  While at Ford Ord, three lawyers said they would put him in for an unsuitability discharge but before anything happened he was sent to the CTF.  While at Fort Ord a CPT told him to talk to a psychiatrist when he got to the CTF. He was told he could not get the kind of help he needed in the Army.

	c.  By getting an undesirable discharge the Army was messing up his life for all time.  He had tried to the best of his ability in the past but had failed because of mental and emotional problems.  He had been told that he would never adjust to Army life but he felt with psychiatric help in the future he would make it but not with an undesirable discharge.

	d.  He felt the only way he could prove he was committed to his goal was to appeal his discharge when he had his medical records from the time before he was in the Army and after.  He would also try to get all the paper work that was done on him while he was in the Army and hope that he had enough proof that at the time this was entered in his files he was interested in his future and the future of his brothers and sister, who he hoped to be able to help financially when he had helped himself mentally. 

12.  On 17 December 1970, his commander, CPT WWG, recommended the applicant be discharged from the military service under the provisions of paragraph 6a of Army Regulation 635-212.  CPT WWG stated:

	a.  The applicant had demonstrated a completely negative attitude since arriving at CTF.  His duty performance had been negligible and his response to the program had been very poor.  He considered himself to be mentally ill and felt that no one in the Army was professionally competent to solve his problems.  He wanted to get out of the Army at all costs so that he could commit himself to a civilian institution.  He verbalized that under no circumstances would he return to duty.

	b.  Because of his feelings he was unresponsive to all forms of counseling.  His low level of participative activity had a detrimental effect on the mission of the unit and other trainees.  He also confessed to being a drug user and bi-sexual.  He admits to acts of homosexuality and 25 or more sexual acts with girls between the ages of 5 and 8.   The members of the leadership team and the unit social worker strongly concurred in recommending his elimination from the service.

13.  On 22 December 1970, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, and directed the applicant be furnished an Undesirable Discharge Certificate.

14.  On 23 December 1970, he was discharged under the provisions of Army Regulation 635-212. 

	a.  He completed 9 months, and 17 days of active service that was characterized as under other than honorable conditions.  He had 141 days of time lost.

	b.  Block 11c (Reason and Authority) of his DD Form 214 shows the Separation Program Number (SPN) 384.  Army Regulation 635-5 (Separation Documents) specifies the narrative reason for SPN 384 as "Unfitness - drug abuse, as defined in paragraph 6a(3), AR 635-212" and that the authority for discharge under this SPN was Army Regulation 635-212.

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

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	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.  

17.  Army Regulation 635-212 (Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(3) of the regulation provided that members involved in drug addiction, habituation, or the unauthorized use or possession of narcotics, marijuana, hypnotics, sedatives, tranquilizers stimulants, hallucinogens, and other similar known harmful or habit forming drugs were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  CPT WWG recommended the applicant for discharge for unfitness due to his self-admitted drug abuse in CPT LPS's and CPT RMC's Brief Clinical Abstract and further detailed in the applicant's own statement dated 11 December 1970.  

2.  CPT LPS and CPT RMC found there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  




3.  In the absence of evidence to the contrary, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  He received NJP on two occasions and he was convicted by a special court-martial for being AWOL.  He had a total of 141 days of time lost.  His 9 months of active service was not satisfactory.  Therefore, there is an insufficient basis to upgrade his undesirable discharge to either a general or 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)                                         AR20140002927



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ABCMR Record of Proceedings (cont)                                         AR20140002927



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