PROCEEDINGS

	IN THE CASE OF:.

	BOARD DATE:           29 March 2000                  
	DOCKET NUMBER:   AR1999021886

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  
	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                      records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous application to correct his military records by upgrading his bad conduct discharge to honorable or general and by changing the reason to expiration of term of service or to unsuitability due to character and behavior disorder.

3. The applicant requests a personal appearance hearing. Through counsel, he contends that the discharge was improper because Army Regulation 635-200, chapter 13 required a mental status examination and because a key witness was not available for his trial by court-martial.  Counsel avers that the discharge is inequitable because the applicant was unsuitable for service due to his deprived background, personality disorder, behavioral problems and extreme immaturity. He argues, in effect that the applicant should have been separated for unsuitability following the 1966 psychiatric evaluation.  He contends that relief is appropriate because there were no substantive rehabilitation efforts.  Counsel further contends that the discharge was unfair and too harsh in light of all the circumstances of the case, that the lengthy confinement was sufficient punishment for the offenses that led to the discharge and that failure to grant relief would be inconsistent with other correction board and discharge review board decisions.  He believes that the same discharge would not result under current standards.  Finally, counsel argues, in effect, that the applicant’s post-service conduct and adjustment warrants the requested relief.  They submit copies of service record documents, numerous documents relating to the applicant’s pre-service and post-service life, the applicant’s personal statement and copies of several correction board and discharge review board cases to substantiate the contentions.  They request copies of any opinions or briefs obtained in the preparation of the case.

4.  Counsel complains that he had undue difficulty in obtaining the applicant’s records.  He also notes that the Board considered the previous case without allowing him a chance to submit additional evidence and argument even though he had asked and been granted the option to do so. 
 
5.  The Memorandum of Consideration of the Board’s 31 January 1996 review of the case is incorporated herein by reference as if wholly set forth.

6.  The documentation submitted contains Connecticut State Welfare Department records and the report of a 29 July 1966 psychiatric evaluation.  These constitute new evidence that requires Board consideration.  Additionally, it is impossible to ascertain from the previous MOC what post-service contentions and any supporting evidence was considered.  Therefore, all such matters must be considered as if new. 

7.  The state child welfare record shows that in approximately 30 different moves between February 1957 (when the applicant was 8 years old) and July 1965 (when he was 16) the applicant was under the care of approximately 12 different individuals, parents, foster parents and group homes.  In July 1965 he was institutionalized.  Narrative summaries show emotional problems as early as 1959.  In 1963 he was expelled from school after he ”purportedly struck a teacher.”  During this period he also underwent extensive psycho-therapy, behavior modification efforts and was prescribed various drugs to help control his aggression, all of which was largely unsuccessful.  His behavior continued to be problematic through 1965.  In May 1966 he ran away and was returned by the police.  Then, he and three other boys beat-up a house parent and the case went to court.  The applicant, who was 17 years and 4 months old, wanted to enlist in the Army.  The judge agreed and the responsible child-welfare official signed in place of his parents.      

8.  On 29 July 1966 an Army  psychiatric evaluation found the applicant free of disqualifying physical defects requiring medical processing.  He was mentally responsible for his behavior, able to tell right from wrong and to adhere to the right.  He had the mental capacity to participate in administrative proceedings.  The examination also produced a diagnosis of chronic, severe emotional instability manifested by an inability to adjust to military environment, immaturity, nervousness, chronic anxiety, unstable control over emotional responses to minor environmental stressors.  The psychiatrist found marked impairment for further military duty and noted that the deeply ingrained character structure was “beyond the scope of rehabilitative efforts in a military environment” and concluded that this condition had existed prior to entry into the service (EPTS).  The report concluded: “ADMINISTRATIVE SEPARATION IS RECOMMENDED.”

9.  The applicant’s sworn statement, apparently associated with a 1992 effort to obtain a state pardon for his criminal offenses, relates that all of his past crimes were alcohol, drug related and post-traumatic stress disorder (PTSD) related.  He wrote that while confined in 1972 he began to look at his behavior and came to the realization that alcohol and drugs were his problem and not the solution to them.  He thought he could stay clean and sober on his own, but that failed.  In 1974 he went back into Alcoholics Anonymous (AA) and that worked until late 1975 when he returned to drinking upon the death of a friend.  He tried quitting on his own but found that very difficult.  He voluntarily entered a half-way house. He “went through the Alcoholics Anonymous program in 1978” and has not had a drink since.  He started working construction but injured his back and had to give that up.  Life was quite difficult for a year and a half but he stayed clean and sober.  Eventually he was able to get a job as a counselor at a substance abuse rehabilitation center and to work with substance dependent people in other endeavors. 

10.  In support of the post-service argument the applicant and counsel submit 36 documents from 23 different sources.  These documents show that he is held in high esteem by substance abuse recovery professionals and recovering addicts alike.  One letter, dated 1985, credits him with 6 years of recovery in AA.  These documents attest to his active participation in the Vietnam Veterans of America and his labor union as an elected official, an appointed chairperson and a volunteer substance abuse counselor.  His is also a volunteer counselor in a local correctional institution.  His supporters include active or former law enforcement, corrections and probation officers; clinical psychologists; social workers; clergy; lawyers and union officials.  He is praised as an honest, hard working, caring person who consistently strives to make a contribution to his community.  In 1993 the State of Connecticut has pardoned his criminal offenses.  In 1998 the Town of Sprague officially commended him for risking his life to protect others as a school crossing guard.  He appears to now have approximately 21 years of continuous active sobriety.

11.  Department of Defense Directive 1332.28 (discharge review procedures and standards) provides, in pertinent part, that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, provided that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would have resulted under the current standards.

CONCLUSIONS:

1.  In light of all the circumstances of the case, but especially the applicant’s deprived background, his personality disorder, the fact that he did go to Vietnam and tried to serve, his suffering from and ultimate recovery from addiction and his sustained success in becoming a contributing member of his community, the current discharge is unjust and should be changed to a general discharge due to secretarial authority.

2.  Greater relief in the form of an honorable discharge or credit for finishing his enlistment is not warranted.  The applicant’s overall record of service is too undistinguished to outweigh his record of misconduct for which he was and is ultimately responsible.  The offenses which led to his discharge were a direct affront to good order and discipline that no degree of emotional or chemical problems in an individual who could tell right from wrong and adhere to the right could possibly excuse.  This Board considers that emotional problems and chemical addiction tend to make proper behavior difficult rather than  impossible.  Furthermore, the Board notes that the civilian authorities who dealt with the applicant before and after his discharge did not excuse his behavior.     

3.  There is no statutory or regulatory right to a formal hearing.  The Board receives over 15,000 applications each year, but normally grants fewer than fifteen formal hearings a year.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.

4.  No advisory opinions or briefs were obtained during the processing of this case.

5.  Cases before this Board are so infrequently truly similar as to virtually preclude logical comparison.  The fact that counsel submitted no general court-martial BCD cases illustrates this point.  Furthermore, this Board considers requests on a case by case basis. 

6.  Army Regulation 635-200 is irrelevant.  The applicant was not discharged under that regulation.

7.  The concept of “current standards” is set forth in the governing directive for discharge review boards, which is considered instructive even though it is applicable to this Board.  There is no substantial enhancement of rights in general court-martial cases.  If counsel means that in general terms standards of conduct or court-martial sentences are so much less stringent that the applicant would not receive a BCD for the instant offenses, this Board disagrees.  The applicant would quite likely receive a more harsh sentence for the same offenses today.

8.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the bad conduct discharge currently held by the individual concerned and by issuing him a general discharge under honorable conditions due to secretarial authority of the same date.                 

BOARD VOTE:

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

__RGH__  ___MDM   ___JPS__  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Robert G. Hinkle__
		        CHAIRPERSON

INDEX

CASE ID	AR1999021886	
SUFFIX		
RECON		
DATE BOARDED	20000329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	105.01  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.	A92.01	
3.		
4.		
5.		
6.