IN THE CASE OF:  	  

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140012006 


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 to an honorable discharge.

2.  The applicant states he has been shown that the existence of a pre-existing mental health condition was the cause for his failure in the military.  His abuse as a child and his mental health condition should not bar him from Department of Veterans Affairs (VA) health care.  This is the reason he wants the upgrade.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 4 (Enlistment Contract)
* Special Orders (SO) Number 208, dated 27 July 1971
* SO Number 051, dated 20 February 1971
* Special Court-Martial Order Number 188, dated 10 July 1970
* Unit Orders Number 8, dated 5 February 1970
* SO Number 219, dated 9 September 1969
* SO Number 275, dated 20 November 1969
* SO Number 219, dated 9 September 1969
* SO Number 233, dated 29 September 1969
* SO Number 58, dated 25 March 1969
* SO Number 141, dated 18 July 1969
* SO Number 188, dated 5 August 1969
* SO Number 60, dated 31 July 1970
* SO Number 25, dated 2 February 1970
* SO Number 344, dated 10 December 1968
* SO Number 343, dated 9 December 1969
* SO Number 210, dated 25 October 1968
* SO Number 224, dated 22 September 1971
* Multiple DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Relief or Recycle of Enlisted Student
* Certificate of Training
* DA Form 137 (Installation Clearance Record)
* DA Form 20 (Enlisted Qualification Record)
* Intake Assessment, dated 14 January 2014
* Statement from his spouse, dated 3 May 2013 
* Statement from his parents, dated 21 April 2013
* Statements from his brothers, dated 24 May 2013
* Statement from a Library Director, dated 28 March 2013
* Jefferson County (MT) Sheriff memorandum, dated 3 June 2013

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 was born in June 1951 and enlisted in the Regular Army for a period of 3 years, at 17 years and 4 months of age, on 25 October 1968.  After completion of basic combat training, he was assigned to Fort Eustis, VA, where he twice failed training in military occupational specialty (MOS) 67U (Aircraft Maintenance). 

3.  On 17 February 1969, at Fort Eustis, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to give notice and turn over property without delay which had come into his possession.  

4.  On 18 March 1969, also at Fort Eustis, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 5 March to 9 March 1969. 

5.  On 7 July 1969, also at Fort Eustis, he accepted NJP under the provisions of Article 15 of the UCMJ a third time for substituting his picture on an Armed Forces Identification Card belonging to another Soldier with intent to deceive. 

6.  After his second MOS training failure, he was reassigned to Fort Polk, LA, where he was trained in and awarded MOS 70A (Clerk).  He was subsequently reassigned to Hunter Army Airfield, GA.  

7.  On 4 February 1970, at Hunter Army Airfield, he accepted NJP under the provisions of Article 15 of the UCMJ for destroying a window and unlawfully entering a building through a window.  

8.  On 22 March 1970, at 18 years and 9 months of age, he departed his unit in an AWOL status.  He ultimately returned to military control on 6 June 1970. 

9.  On 2 July 1970, at 19 years of age, at Fort Lewis, WA, he was convicted by a special court-martial of being AWOL from the Overseas Replacement Station, U.S. Army Personnel Center, Fort Lewis, from 22 March 1970 to 6 June 1970.  The court sentenced him to confinement at hard labor for 3 months, a forfeiture of $50.00 pay per month for 3 months, and a reduction to the lowest enlisted grade. 

10.  On 10 July 1970, the convening authority approved a lesser sentence by suspending the adjudged sentence to confinement at hard labor for a period of 5 months.  

11.  Following his court-martial conviction, he served in Vietnam from on or about 26 July 1970 to on or about 24 August 1971.  He was assigned to the Qui Nhon Sub-Area Command.  He was awarded or authorized the Vietnam Service Medal and Republic of Vietnam Campaign Medal with Device (1960). 

12.  On 9 June 1970, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his continued misconduct, including his record of NJP and AWOL.  The immediate commander stated: 

	a.  The applicant was evaluated under the drug amnesty program at the Mental Health Hygiene Clinic, 67th Evacuation Hospital, on 28 April 1971.  In addition to the treatment provided by the clinic, he was counseled by his unit commander and given a new job within the unit. 
	b.  On 8 June 1971, he was again counseled regarding the use of drugs.  He admitted that he was still on drugs.  Additionally, on 9 June 1970, he was referred to Mental Hygiene for possible isolation.  

13.  His senior commander recommended approval of the bar to reenlistment and indicated that the applicant's performance had been totally unsatisfactory and he had little future in the Army.  

14.  The applicant was given a copy of the bar to allow him to submit a rebuttal but he elected not to submit a statement.  The bar was ultimately approved by the approving authority. 

15.  On 22 June 1971, at 20 years of age, the applicant underwent a separation physical under the provisions of Army 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The examining physician found the applicant medically qualified for separation.  The physician assigned him a PULHES of "1-1-1-1-1-1" indicating no medical issues or disqualifications. 

16.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains the following documents confirming his discharge: 

	a.  An endorsement, signed by the Commanding General, Headquarters, U.S. Army Support Command, Vietnam, on 2 July 1971 approving a recommendation for the applicant's discharge in accordance with Army Regulation 635-212 by reason of unfitness with an under other than honorable conditions characterization of service, a waiver of the rehabilitative efforts, a reduction to the lowest enlisted grade, and the issuance of an Undesirable Discharge Certificate. 

	b.  SO Number 224, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, on 22 September 1971, ordering the applicant's discharge with an under other than honorable conditions characterization of service effective 24 September 1971.  He was 20 years and 3 months of age.

	c.  A duly-constituted DD Form 214 that shows he was discharged on 24 September 1971 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under other than honorable conditions. He completed 2 years, 6 months, and 18 days of total active service and he had 134 days of time lost.

17.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.
18.  He provides: 

	a.  Intake Assessment, dated 14 January 2014.  It shows he was seen briefly in early 2013 and a few times since then.  He was unable to come in on regular basis.  He asked for assistance in an assessment of his current mental health based on a history of childhood physical and sexual abuse, his enlistment in the Army at 16 years of age without finishing high school, and the years of estrangement and addiction following his discharge.  He hopes to have his discharge upgraded in order to receive VA benefits. 

	b.  System check, dated 3 June 2013, by the Sheriff, Jefferson County, MT.  It confirms he has no criminal history. 

	c.  Statement from his spouse, dated 3 May 2013.  She states she has been married to the applicant for 24 years and he shows a very depressive side which includes long sleep times, alcoholism, and random mean and psychotic disorder. 

	d.  Statement from his parents, dated 21 April 2013.  They describe the applicant's childhood, upbringing, siblings, military service, and his overall life.  

	e.  Statements from his brothers, dated 24 May 2013.  They describe their childhood, his enlistment and service in Vietnam, and his current struggles.

	f.  Statement from a Library Director, dated 28 March 2013.  He describes the applicant as a trust-worthy individual who cares about people and the community. 

19.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, 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.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of 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.

	a.  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.

	b.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to an honorable discharge.

2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains an approval endorsement from the Commanding General, U.S. Army Support Command, Vietnam, together with a discharge order and a duly-constituted DD Form 214 that confirm the applicant's discharge in accordance with Army Regulation 635-212 by reason of unfitness with an under other than honorable conditions characterization of service.

3.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.

4.  Nothing in his records supports his contention that his extensive history of misconduct was caused by a medical or a mental condition.  In fact, prior to his discharge, he underwent a separation physical.  He was found medically qualified for separation.  

5.  Likewise, nothing in his records supports his contention that his extensive history of misconduct was caused by his age.  Although he was 17 years and 4 months of age at the time of his enlistment, his misconduct occurred at different ages and throughout his service.  There is no evidence that he was any less mature than thousands of other Soldiers who successfully completed their service. 
6.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  This is evident by his four instances of NJP, multiple instances of AWOL, court-martial conviction, and bar to reenlistment.  Based on his record of indiscipline, his service clearly does not merit an upgrade of his discharge.  Therefore, he is not entitled to either an honorable or a general 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)                                         AR20140012006





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ABCMR Record of Proceedings (cont)                                         AR20140012006



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