IN THE CASE OF:  

		BOARD DATE:  6 January 2015	  

		DOCKET NUMBER:  AR20140008971 


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 request for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge.

2.  The applicant's discharge was previously upgraded to a general discharge in 1977.  In effect, he is requesting reconsideration of his previous request that his upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Board (SDRP) so he may obtain Department of Veterans Affairs (VA) benefits. 

3.  The applicant states:

* he was promised when he entered the service he would not deploy to Vietnam; this promise was not fulfilled; others were lied to as well
* he was absent without leave (AWOL) for 98 days but he was suffering from schizophrenia, clinical depression, post-traumatic stress disorder (PTSD), drug addiction, and appendicitis
* he was young at the time and he agreed to the chapter 10 because that was the only option presented to him 
* immediately following his discharge, his father placed him in treatment for a mental health issue and substance-related treatment 
* the Army Discharge Review Board (ADRB) upgraded his discharge but did not affirm the upgraded discharge
* in September 2009, his doctor stated he suffered from severe depression and PTSD directly related to his military service; he also attributed his drug abuse to his military service
* in November 2011, during his Compensation and Pension exam, the VA diagnosed him with schizophrenia; the examiner stated he was unable to cope with stressors of the military and that he had a depressive disorder 
* the doctor opined that more likely than not, the depressive disorder was related to military service 
* in August 2012, he submitted a statement explaining how his life deteriorated because of his inability to adjust
* in September 2012 a retired officer testified about his good character despite the mental issues 
* in March 2014, a medical report indicated if he had not joined the military and if the military had not handled his situation so poorly, he would not have developed these conditions 
* his new psychological report shows he was insane at the time of his military service despite being perfectly normal prior to his military service
* the information regarding staying at a hospital (while AWOL) for 5 days and a juvenile detention center for 60 days also support his claim
* the recruiter's dishonesty also contributed to the misconduct; he broke the promise about not going to Vietnam 

4.  The applicant provides (previously submitted or available evidence is indicated with the letters "PS" and new evidence is indicated with the letter "N"):

* Statement dated 1 August 2011 from a clinical psychologist (PS)
* VA progress notes, dated 9 November 2009 (PS)
* DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States, dated 17 January 1977 (PS)
* ADRB Case Report and Directive (PS)
* Reissued DD Form 214 (Report of Separation from Active Duty) (PS)
* DD Form 215 (Correction to DD Form 214) (PS)
* Letter from the ADRB, dated 31 August 1978 (PS)
* Three statements from friends (Mr. DRW, Mr. GV, and Mr. FB), dated April 2010, to the VA (PS)
* Statement, dated 2 September 2012, from Lieutenant Colonel JWW (Retired) (PS)
* Email, dated 4 May 2011, from the City of Newark City Manager (N)
* Statement, dated 20 May 2011, from the Delaware Health and Social Services (N)
* Statement from his mother, Ms RM, dated 13 May 2014 (N)
* Statement, dated 24 October 2014, from his wife, Mrs. BGJ (N)
* Marriage record and a birth certificate (N)
* Statement from a clinical psychologist, dated 17 March 2014 (N)
* Internet article from a commercial website, dated 25 October 2011 (N)

5.  On 1 October 2014, he submitted two letters written by his mother on 2 June 2014 and 1 January 2013, to the Vice President of the United States.

CONSIDERATION OF EVIDENCE:

1.  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 AR20130019232, on 16 May 2013.

2.  The applicant's request does not meet the criteria for reconsideration in that his request was received on 21 May 2014; thus, not within one year of the original Board's decision (16 May 2013).  However, he completed his request on 5 May 2013 and it appears his request was delayed by the mail.  Additionally, he provides new documents that were not previously considered.  Therefore, as one-time exception to policy, his request will be reconsidered by the Board. 

3.  The applicant's records show he was born in December 1954 and he enlisted in the Regular Army at 17 years and 7 months on 17 December 1971.  His DD Form 4 (Enlistment Contract) shows he enlisted for U.S. Army Europe and training for Combat Engineer.  

4.  He was initially assigned to the U.S. Army Reception Station, Fort Dix, NJ, on 17 December 1971 and on 30 December 1971, to Company B, 5th Battalion, 3rd Basic Combat Training Brigade, Fort Dix, for completion of training. 

5.  On 15 January 1972, he departed his unit in an AWOL status.  He appears to have returned to military control on 6 February 1972.  However, on 8 February 1972, he again departed his training unit in an AWOL status and on that same date he was dropped from the Army rolls as a deserter. 

6.  His commander submitted a Commanding Officer's Inquiry memorandum wherein he stated: 

* when the applicant returned from AWOL on 6 February 1972, he read him for a summary court-martial; he departed AWOL again on 8 February 
* his investigation of the applicant's past record indicated he had a long history of truancy and theft dating back to 1968
* during his previous AWOL, he was picked up by the Delaware State Police and when the Provost Marshal was contacted, he was erroneously informed the applicant was not AWOL
* his AWOL was not due to foul play, illness, or any reason beyond his control 

7.  He was apprehended by civil authorities in Wilmington, Delaware, and returned to military control on or about 1 May 1972.  He was assigned to the Army Personnel Control Facility, Fort Meade, MD. 

8.  Subsequent to his return to military control, on 8 May 1972, his chain of command preferred court-martial charges against him for two specifications of AWOL from 15 January to 6 February 1972 and from 8 February to 3 May 1972. 

9.  On 24 May 1972, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Enlisted Separations).  In his request for discharge he acknowledged/indicated:

* he had not been subjected to coercion with respect to his request and he had been advised of the implications attached to his request
* he understood by requesting discharge he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* he acknowledged he understood if his discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

10.  On 26 June 1972, his immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 12 July 1972, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200, and directed his reduction to the lowest enlisted grade, if applicable, and the issuance of an Undesirable Discharge Certificate.

12.  Accordingly, on 7 July 1972, Headquarters, Fort Meade, MD published Special Orders Number 132 ordering his discharge from active duty, in the rank/grade of private/E-1, and with an under other than honorable conditions characterization of service. 

13.  The applicant was discharged on 12 July 1972.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate. He competed 3 months and 9 days of active service and he had 106 days of lost time. 

14.  On 16 August 1977, the applicant was notified that the ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to a general discharge under honorable conditions.  Accordingly, the applicant was reissued a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under honorable conditions effective 20 July 1977.

15.  On 2 August 1978, the applicant was notified that the ADRB reviewed his previously-upgraded discharge as required by Public Law 95-126.  As a result of this review, the Board determined the applicant did not qualify for an upgrade under the new uniform standards for discharge review.  Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed.  He was issued a DD Form 215 to reflect this action.

16.  The applicant provides: 

	a.  A psychological evaluation report, dated 17 March 2014, wherein a clinical psychologist indicated that he assessed the applicant's behavioral and mental health status between December 2013 and March 2014.  He diagnosed him as follows: 

* Axis I: PTSD, Major Depressive Disorder and Poly-substance Dependence
* Axis II: Obsessive Compulsive Personality Disorder 
* Axis II: CVA, Nystagmum, Apraxia, Hyperlipidemia
* Axis IV: Housing
* Axis V: Current Global Assessment of Functioning: 50

	b.  A statement, dated 13 May 2014, from his mother.  She states to the best of her recollection, the applicant was in severe pain on his right side and he had an appendix removed at Wilmington General Hospital between February and May 1972 while a minor and while AWOL.  His hospital records do not exist anymore. 

	c.  A statement, dated 24 October 2014, from his wife as well as a marriage certificate.  She states the applicant is an honorable man with a troubled youth.  His illnesses originated in or were aggravated in the military and he now has multiple health conditions. 

	d.  Letters, written by his mother In June 2014 and January 2013, to the Vice President of the United States that essentially ask the Vice President for assistance in the applicant's characterization of service. 

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.  

18.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required 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.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

19.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

20.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his upgraded discharge should be affirmed under the DOD SDRP so he may qualify for VA benefits.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  With respect to his argument: 

	a.  The applicant enlisted for the U.S. Army Europe option.  There is no evidence in his records and he provides none that shows he was ordered to go to Vietnam or that his recruiter lied to him.  In fact, he did not even complete basic training or advanced training.  He went AWOL two weeks into his training. 

	b.  Although the applicant was 17 years and 7 months at the time of his enlistment, despite his youth, there is no evidence that shows he was any less mature than other Soldiers who successfully completed their terms of service, many of whom with multiple combat tours at the time. 

	c.  Nothing in the applicant's records shows he was diagnosed with a medical condition or a behavioral health condition that prevented him from completing training.  The evidence of record clearly shows he chose to go AWOL and he chose the voluntary discharge.  He could have elected the court-martial if he believed he was innocent of the charges. 

	d.  When he applied for his voluntary discharge, he did not even make a statement.  That was the time and the forum to bring up the alleged issues he now raises in his current application (recruiter lied, he had medical problems, he was young, etc…). 

4.  After review of the applicant's case, the ADRB decided not to affirm the discharge upgrade under Public Law 95-126 and the established uniform standards.  The applicant's administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  Notwithstanding the original determination by the ADRB, the official record shows his service was not satisfactory and his general discharge should not be affirmed.  He had more lost time than he actually served.   

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to any further correction of his 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 to amend the decision of the ABCMR set forth in Docket Number AR20130019232, dated 16 May 2013.



      ____________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)                                         AR20140008971





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ABCMR Record of Proceedings (cont)                                         AR20140008971



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