BOARD DATE: 20 June 2017 DOCKET NUMBER: AR20160001414 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 BOARD DATE: 20 June 2017 DOCKET NUMBER: AR20160001414 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. BOARD DATE: 20 June 2017 DOCKET NUMBER: AR20160001414 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 discharge from dishonorable (i.e., under other than honorable conditions) to general under honorable conditions. 2. The applicant states he was given an undesirable discharge for the good of the service, but his DD Form 214 (Armed Forces of the United States Report of Transfer or discharge) shows his discharge is dishonorable. He had an alcohol dependence condition. He was angry about Vietnam. He had completed 3 years and 6 months of service and he had other mental issues due to family matters that added to the problems that were going on in his life. 3. The applicant provides no additional evidence. 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 (RA) on 22 February 1963 and held military occupational specialty (MOS) 11E (Armor Crewman). He was honorably released from active duty on 25 February 1966. 3. He enlisted in the RA again on 18 October 1966. He served in Vietnam from 20 October 1966 to 4 July 1968 and from 20 July 1969 to 14 October 1969. He was honorably discharged from active duty on 14 October 1969. 4. He enlisted in the RA once again on 27 March 1970 and held MOS 94B (Cook). He was honorably discharged on 9 May 1971 for immediate reenlistment. 5. He reenlisted in the RA on 10 May 1971. He again served in Vietnam from 12 August 1971 to 19 March 1972. 6. On 8 January 1972, he was convicted by a special court-martial of one specification of behaving with disrespect toward a superior commissioned officer, one specification of willfully disobeying a lawful command, two specifications of being drunk and disorderly, and one specification of wrongfully and willfully discharging a firearm (M-16) and endangering human lives. The court sentenced him to reduction to specialist four (SP4)/E-4. The convening authority approved the sentence on 14 January 1972. 7. On 6 September 1972, he accepted nonjudical punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2 to 3 August 1972 and for failing to obey a lawful order. 8. On 1 August 1972, he departed his unit in an AWOL status, but he returned to military control on 7 August 1972. 9. On 5 December 1972, he was reported in an AWOL status and on the same date he was dropped from the rolls as a deserter. He was apprehended by civil authorities and returned to military control on 10 January 1973. 10. It appears that following his return from AWOL, court-martial charges were preferred against him for one or more specifications of being AWOL. The DA Form 458 (Charge Sheet) is not available for review with this case. 11. It also appears that the applicant consulted with legal counsel who would have advised him 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 UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant appears to have requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he would have acknowledged he understood: * he was making this request of his own free will and had not been subjected to any coercion with respect to this discharge and he was also advised of its implications * if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life 12. On 29 January 1973, the applicant's senior commander recommended approval of the discharge action with the issuance of an undesirable discharge. 13. On 1 February 1973, the separation authority approved the recommendation to discharge the applicant from the Army under the provisions of chapter 10 of AR 635-200. He directed the issuance of an Undesirable Discharge Certificate and the applicant's reduction to the lowest enlisted grade. On 9 February 1973, the applicant was discharged accordingly. 14. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he was discharged under the provisions of chapter 10 of AR 635-200 in lieu of trial by court-martial. This form also shows he completed 1 year, 7 months, and 19 days of active service during this period and he had 43 days of time lost under Title 10, U.S. Code, section 972. He was assigned separation program designator code 246 and he was issued an Undesirable Discharge Certificate. 15. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations. 16. On 9 November 2016, a member of the Army Review Boards Agency (ARBA) staff corresponded with the applicant and requested copies of medical documents that support his claim of mental health issues, including Department of Veterans Affairs medical documents. The applicant did not respond. 17. In the processing of this case, the ARBA reviewed the applicant's case and rendered an advisory opinion on 17 March 2017. He stated a review of the applicant's electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)) revealed no record (note: AHLTA implementation began in 2003). The applicant's DA Form 201 (Military Personnel Records Jacket) was reviewed. The applicant's Service Treatment Record was not available for review from the National Archives and Records Administration. a. His Standard Form (SF) 93 (Report of Medical History), dated 11 February 1966, indicates all "no" responses. His SF 88 (Report of Medical Examination), dated 11 February 1966, with clinical evaluation was unremarkable (no identifying body marks, scars, tattoos; dental – class III), with a physical profile (PULHES) rating of 111111, qualified for separation. His 3AA Form (Statement of Medical Condition), dated 24 February 1966, signed by applicant shows he stated: "There has been no change in my medical condition since my last medical examination 24 February 1966 with the following exception: /blank/. His SF 93, dated 18 October 1966, with clinical history indicates all "no" responses except a history of mumps. His SF 88 with clinical evaluation was unremarkable (multiple tattoos; dental – acceptable type III), PULHES 111111, qualified for service. b. His SF 93, dated 13 October 1969, indicates "yes" responses for hearing loss and stomach/liver/or/intestinal trouble. His SF 88, dated 13 October 1969, for separation with clinical evaluation was remarkable for "H3 high frequency hearing loss and "nervous stomach" (Vietnam (in records))," dental class 2) with "is not qualified" checked by the provider. c. His SF 93, dated 24 March 1970, indicates all "no" responses except history of mumps and history of prior service. His SF 88, dated 24 March 1970, with clinical evaluation was unremarkable (tattoos), PULHES 111111, qualified for service. d. A limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer noted 18 problems listed (all VA entered), including "other depressive episodes," hearing loss, alcohol and nicotine dependence, chronic obstructive pulmonary disease (emphysema), multiple eye issues, and others. The applicant is VA service connected as 20-percent disabled overall for duodenal ulcer (0 percent for scars and impaired hearing). e. The applicant's Service Treatment Record was not available for review from the National Archives and Records Administration to make a determination if the available record reasonably support a diagnosis of post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) existed at the time of the applicant's military service. The applicant met medical retention standards for hearing loss and "nervous stomach" in accordance with AR 40-501 (Standards of Medical Fitness) and following the provisions set forth in AR 635- 40 that were applicable to the applicant's era of service. f. The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 18. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal. He did not respond. REFERENCES: AR 635-200 sets forth the basic authority for the 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge is normally considered appropriate. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. 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 c. 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: 1. The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 2. He appears to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were presumably met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline, the applicant's chain of command determined that his misconduct rendered his service unsatisfactory. The chain of command also determined his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and did not rise to the level required for a general discharge. 4. The applicant's medical records were not available for review and/or were not sufficient to make a determination if the available record reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service. 5. Based on the available medical records, the applicant met medical retention standards. His medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001414 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001414 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2