MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 November 2002                   
	DOCKET NUMBER:   AR2002069501

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Hubert O. Fry, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Reconsideration of his earlier appeal to upgrade his undesirable discharge (UD) to an honorable discharge.

APPLICANT STATES:  In effect, that he has requested that his congressional representative assist him in obtaining an HD and a service connected disability rating from the Department of Veterans Affairs (DVA).

The applicant's congressional representative states that Date Line NBC aired a story about a young United Sates Army private that went to Viet Nam to serve his country and he never returned.  Thirty years, later, he surfaced in New Zeland, after being absent without leave (AWOL) and being declared a deserter, the Department of the Army granted him a general discharge under honorable conditions.  He also points out that the relevance of this story to the applicant's request for an upgrade of his discharge is that the applicant would like to point out that he served multiple tours in Vietnam, without any pattern of misconduct.  It was during his final tour that he attempted to alleviate the feelings of stress and fear of an almost certain sense of death that he used illegal drugs.  The applicant believes that all facts considered his service to our country warrants an equal or more desirable discharge that that of a known deserter.  He also contends that the related charges filed against him in the Superior Court of the State of Washington in January 1972, have been expunged.  The applicant's congressional representative submits in support of his request:  a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 15 May 1972; a letter that he received from the Army Board for Correction of Military Records, dated 31 October 2001; a Congressional Casework Authorization Form, dated 30 November 2001; a "Dateline-NBC" transcript, dated 30 November 2001; a letter from the DVA Medical Center, La Jolla Village Drive, San Diego, California, dated 6 December 2001, signed by the Posttraumatic Stress Disorder (PTSD) Clinical Team (PCT) Medical Director and the PCT Clinical Social Worker; a letter from Dr. "David W. Schwartz, M.D., FAAFP, CAQ in Geriatric Medicine," dated 7 January 2002; and Congressional correspondence, dated 22 January 2002.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001060929) on 18 October 2001.

The applicant’s submissions are new evidence that requires Board consideration. The letter from the DVA, dated 6 December 2001, indicates that on 25 September 2001, the applicant initiated treatment at the PCT and he is currently under psychiatric treatment by the PTSD PCT at the DVA San Diego.  He self-referred at the recommendation of a friend who was also an active patient.  His initial and ongoing psychiatric complaints include sleep disorder, nightmares, flashbacks, intrusive thoughts, social isolation, severe depression, suicidal ideation, a history of homicidal ideation and anger outbursts.  The applicant contends that many of his psychiatric symptoms began to appear immediately upon his return from Vietnam in September 1971.  He has participated in individual case management with a clinical social worker and he is currently attending weekly sessions in PTSD Grief/Debriefing.  He is also being medicated for PTSD and his compliance with treatment recommendations has been good.  In accordance with the DSM IV criteria, the applicant's diagnosis is as follows:  Axis I:  PTSD/309.81; Major Depression, Recurrent/296.3; Axis II:  No diagnosis on Axis II; Axis III:  Hx. of a Liver Transplant on 6-17-2000, Hepatitis C, and Tinnitis; Axis IV:  Severe stress due to a chronic and severe medical and psychiatric condition as a result of being unemployable; Axis V: GAF: 38.

The applicant's combined psychiatric and medical diagnosis renders him completely occupationally disabled.  Due to the severity of his medical and psychiatric illness his disability is assessed as total and permanent.  Both the PCT Medical Director and the PCT Clinical Social Worker indicate that they have chosen to advocate for the fair treatment of the applicant in helping him reverse the UD that he received, because he represents one of many traumatized combat veterans whose symptoms following combat service contributed to his substance abuse and undesirable service behavior. 

The applicant's current physician indicates in a letter written to the Board, dated 7 January 2002, that the applicant has been a patient since 1994.  He states he has seen the applicant numerous times as his primary care physician for depression, anxiety, sleep disorder, and PTSD.  The applicant has hepatitis C and that he has been a post-liver transplant recipient since 17 June 2000.  The applicant did self-medicate prior to becoming his patient, however, the applicant terminated that behavior in 1987 after a licensed practitioner offered him appropriate medication.  The applicant's PTSD is being treated with Celexa, Zyprexa and Xanax with good results.  He believes that the applicant's PTSD resulted from his tour in the RVN between December 1969 and September 1971 and that his condition was exacerbated by the life-threatening nature of his hepatitis C, which in turn, necessitated the life saving liver transplant procedure.

The applicant enlisted in the Regular Army on 26 June 1969.  O n 15 September 1969, at age 18, he was assigned to Vietnam.  Medical documents indicate that between December 1970 and June 1972, while the applicant was assigned to Vietnam, he continuously reported that he was experiencing personal difficulty.  Medical personnel at the 210th Aviation Dispensary, Vietnam determined that he was suffering from situational depression and he was administered Librium once and Valium sporadically in small doses.  On 7 December 1970, he was sent to the amnesty house, apparently due to a drug-related problem.  There is no evidence of the type of treatment that he received or how he responded to this treatment.  Medical evidence also indicates that he was being referred to psychiatry; however, there is no indication that he saw a psychiatrist at this time.

On 19 July 1971, he was convicted by a special court-martial of possessing heroin, violating a lawful general regulation and failing to go at the time prescribed to his place of duty.  He was sentenced to confinement at hard labor for 3 months, to forfeit $75.00 pay per month for 4 months and to be reduced to private.  

On 22 September 1971, he returned to the United States to Letterman General Hospital for 9 days of drug detoxification followed by an assignment to Yakima Firing Center, Fort Lewis, Washington.  

As stated in the Board's previous decision, the applicant's records do not contain all of the facts and circumstances surrounding the discharge process.  However, the Army Discharge Review Board (ADRB) brief, dated 21 March 1974, indicates that on 17 November 1971, nonjudicial punishment (NJP) was imposed against the applicant for being absent from his place of duty from 1700-1920 hours on 17 November 1971.  His punishment for this offense is not known.  NJP was also imposed against him for being AWOL from his place of duty from 12 January-13 January 1972.  His punishment included reduction in rank and forfeiture in pay.  Neither of the NJP record of proceedings is contained in the available record.

On 6 January 1972, civilian authorities in Yakima County, Washington, apprehended the applicant and charged him with unlawful delivery of a controlled substance (marijuana).  On 29 February, he pled guilty.  On 6 March 1972, civilian authorities in the Superior Court of the State of Washington convicted him of this offense.  He was sentenced to serve 2 years on probation. 

On 9 March 1972, the applicant was referred to Mental Hygiene, Yakima Firing Center.  He was determined to have a "passive-aggressive personality, chronic, moderate, manifested by extensive drug use."  During the evaluation process, the applicant stated that his drug use consisted only of marijuana and hashish, since his return from Vietnam.  He also stated that he had no desire to terminate his marijuana use.  All of his urinalyses were negative for opiates.  The evaluating officer stated that he did not believe that the applicant would benefit significantly from a formal drug treatment program.  

On 20 March 1972, the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation 635-206, for conviction by a civil court.  The applicant's commander recommended that he not be issued a less than general discharge and further punished due to his problems involving drugs.  Both the first and second endorsements concurred with the recommendation for separation, but recommended that the applicant be furnished an UD because he was convicted of unlawfully selling a controlled substance (marijuana).

On 27 April 1972, the applicant underwent a physical examination that determined he was qualified for separation with a physical profile of 111111.

On 15 May 1972, the applicant was separated under the provisions of Army Regulation 635-206, for misconduct due to being convicted by a civil court during his current term of military service with a UD.  He had completed 2 years, 7 months, and 3 days of total active military service and he had had 107 days of lost time.

On 10 July 1972, his case was accepted for courtesy supervision by the Human Resource Agency, Probation Department, San Diego, California.

The applicant's adjustment throughout his probationary was good.  However, early into his probationary period, in October 1972, he was arrested after marijuana was found in the vehicle in which he was a passenger.  The charges were dismissed.  He removed himself from those individuals that may have had contact with the drug culture and he became a law-abiding citizen.  He maintained employment and he was self-supporting.  He satisfactorily fulfilled the order of the Washington State court.   On 24 January 1974, the Superior Court of the State of Washington issued an "Order of Dismissal" dismissing the charges and relieving the applicant of all penalties resulting from his conviction.  

On 27 August 1974, the ADRB denied the applicant's request for a discharge upgrade.

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  A UD discharge was normally considered appropriate.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3.  The Board concludes that the applicant may have used controlled substances to self-medicate; however, he was separated with a UD discharge after he sold a controlled substance to other individuals.    

4.  Additionally, the Board determined that the applicant had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct that led to the separation action under review.

5.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __rwa___  __hof___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069501	
SUFFIX		
RECON		
DATE BOARDED	20021126	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19720515	
DISCHARGE AUTHORITY	AR 635-206  	
DISCHARGE REASON	A66.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6600	
2.		
3.		
4.		
5.		
6.