IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150003416 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150003416 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150003416 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect: * he served in Vietnam and came back an alcoholic * he couldn't go without a drink and had flashbacks of Vietnam for several years after he came home * he was told years later that he had ADHD (attention deficit hyperactivity disorder) and he now has physical conditions caused by Agent Orange * he had three heart attacks and tumors removed from his neck area * he is now a borderline diabetic * he deserves an upgrade of his discharge 3. The applicant provides: * an extract from an OSA Form 172 (Discharge Review), 1 page * DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 1 March 1972 * three Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 2 January 1971, 3 January 1972, and 28 February 1972 * SF 502 (Clinical Record-Narrative Summary), dated 12 January 1972 * MEDDAC Form #65 (Blood Alcohol Determination), dated 28 February 1972 * USAARMC Form 854 (Extract of Records of Non-Judicial Punishment (NJP) of Article 15, UCMJ) 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 enlisted in the Regular Army on 30 September 1969. He served in military occupational specialty 64A (Light Vehicle Driver). The highest rank/grade he attained was private first class (PFC)/E-3. 3. He accepted NJP on 16 March 1970, under the provisions of Article 15 of the UCMJ, for being absent without leave (AWOL) from on or about 28 February to 13 March 1970. 4. He served in the Republic of Vietnam from on or about 19 March 1970 through 21 February 1971, a period of 11 months and 3 days. 5. He accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: a. on 4 January 1971, at Camp Vasquez in the Republic of Vietnam (RVN), for sleeping at his post on 24 December 1970; b. on 25 March 1971, for being AWOL from on or about 17 to 20 March 1971; c. on 20 July 1971, for being AWOL from on or about 7 to 17 July 1971; and d. on 1 March 1972, for being drunk and disorderly in public at Fort Devens, Massachusetts, on 28 February 1972. 6. An undated DA Form 188 (Extract Copy of Morning Report) reveals the applicant was reported AWOL on 6 April 1972 by his company commander. He was apprehended by civil authorities on 28 September 1972 and returned to military control at Fort Knox, Kentucky on 29 September 1972. 7. A DD Form 458 (Charge Sheet), dated 5 October 1972, shows court-martial charges were preferred against him for being AWOL from on or about 6 April to 16 September 1972. 8. On 10 October 1972, he consulted with legal counsel and voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 9. In doing so, he acknowledged the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 10. He elected to submit a statement in his own behalf; however, the statement, if composed, was not available for review in this case. 11. The separation authority approved his request for discharge on 18 October 1972 and directed the issuance of an undesirable discharge and reduction to the lowest enlisted grade. 12. The applicant was discharged on 27 October 1972. The DD Form 214 he was issued shows he served 2 years, 7 months, and 5 days of total active service, accrued 176 days of lost time and his service was characterized as under conditions other than honorable. 13. There is no evidence in his record nor does he provide evidence that establishes a medical diagnosis of alcohol dependency. Further, there is no medical documentation showing a diagnosis of ADHD or addressing his exposure to Agent Orange. There is no evidence that indicates he had issues with alcohol aside from those noted above or that either he or members of his chain of command determined that he was an alcoholic during his period of active service. 14. The ADRB denied his request for an upgrade of his discharge on 8 June 1981. 15. The applicant provides the following documentation: a. An extract from an OSA Form 172, an Army Discharge Review Board (ADRB) evaluation, which highlights that the "applicant was medevac'd from RVN in February 1971. Medical records reflect applicant had severe loss of weight and other problems. Applicant was assigned [Medical Holding Company], Fort Knox February - May 1971." This is presumed to show the applicant had medical issues; however, it does not state specific health issues besides weight loss. b. A DA Form 2627-1, dated 1 March 1972, which shows he received an Article 15 for being drunk and disorderly in public at Fort Devens, Massachusetts on 28 February 1972. c. An SF 600, dated 2 January 1971, which shows he was seen by a medical professional for "nerves bad and losing weight." In summary, it states the applicant lost 35 pounds over the preceding 3 months but he had been eating three meals a day. He had not received bad news from home but his sergeant seemed to be picking on him more lately. He was last seen on 31 December 1970, and was given Tigan (a prescription drug used for treating nausea). d. An SF 502, dated 12 January 1972, which shows he entered the hospital on 10 January 1972, for 2.5 days, following the intake of excessive ethanol and apparently some sort of trauma, whereby he fell down stairs and through a door. It further states that during the physical examination, he was combative and had to be restrained. It also states his recovery was unremarkable and discharge diagnoses were: ethanolism (alcohol poisoning), small laceration on right forearm, bruise on left rib area, and possible concussion. He was discharged back to duty. e. An SF 600, dated 31 January 1972, which shows he was brought into the emergency room at Cutler Army Hospital, Fort Devens, Massachusetts after an altercation and drinking. He was inebriated and he had a black eye and a bloody nose. f. An SF 600 and MEDDAC Form #65, both dated 28 February 1972, which show he was brought into the emergency room after a fight and diagnosed with a swollen forehead. He was inebriated, physically uncontrollable, incoherent and refused to take a blood alcohol test. g. A USAARMC Form 854, dated 11 October 1972, which shows he received an Article 15 on 1 March 1972, for being drunk and disorderly in a public place on 28 February 1972. 16. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Clinical Psychologist. The advisory opinion states: a. Based on the information available, the applicant's record reasonably supports anxiety and depression existed at the time of his military service. These conditions may be considered mitigating factors for his misconduct of being AWOL, drunk and disorderly conduct in a public place, and sleeping on his post in a hostile fire area. b. In accordance with Title 10, U.S. Code, Section 1177 (Members diagnosed with or reasonably asserting PTSD or traumatic brain injury: medical examination required before administrative separation), the requirement for a behavioral health exam prior to separation from service was not applicable in the applicant's case because he was discharged prior to this provision of the U.S. code being signed into law (28 October 2009). 17. The medical advisory opinion was provided to the applicant on or about 8 April 2016 to afford him the opportunity to respond to its contents; however, no response was received. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid a trial by court-martial. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. The advisory opinion concludes that the applicant's record reasonably supports anxiety and depression existed at the time of his military service and that these conditions may be considered mitigating factors for his misconduct. Notwithstanding the advisory opinion, his record of indiscipline included four instances of being AWOL (of which one incurred before his deployment to the Republic of Vietnam), one instance of being drunk and disorderly in a public place, and one instance of sleeping on duty at a combat outpost, which resulted in NJP and the imposition of court-martial charges. 5. The applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel. Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time. The available evidence does not support changing the separation authority's decision. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003416 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003416 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2