IN THE CASE OF: BOARD DATE: 28 April 2011 DOCKET NUMBER: AR20100027142 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 his discharge be upgraded to an honorable discharge (HD). 2. The applicant states he was not evaluated properly for his mental status during his discharge processing. 3. The applicant provides a self-authored statement and 31 documents in support of his request. 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 record shows he enlisted in the Regular Army and entered active duty on 30 June 1969. He was honorably discharged for the purpose of immediate reenlistment on 25 July 1971. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed 2 years and 24 days of creditable active military service and had accrued 2 days of time lost due to being absent without leave (AWOL). On 26 July 1971, he reenlisted for 5 years. 3. The record shows the applicant held and served in military occupational specialty 67U (CH-47 Helicopter Repairman) and that specialist four/E-4 is the highest rank he attained while serving on active duty. It also shows he was reduced to private first class/E-3 for cause on 25 February 1972. 4. The applicant's record shows he served a combat tour in the Republic of Vietnam (RVN) from 13 February 1970 through 31 December 1970 and he earned the following awards during his active duty tenure: * National Defense Service Medal * Vietnam Service Medal * RVN Campaign Medal with Device (1960) * Army Commendation Medal * one overseas service bar 5. His record shows a disciplinary history that includes his accrual of 170 days of lost time due to four separate periods of being AWOL between 8 February 1970 and 9 August 1972. It also includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate dates for the offenses indicated: * 29 October 1971, for failing to go to his prescribed place of duty at the appointed time * 1 December 1971, for being AWOL from 2-10 November 1971 * 25 February 1971, for being AWOL from 15-22 February 1972 6. On 9 March 1972, the applicant was AWOL from his organization at Fort Benning, Georgia. He remained away until being returned to military control on 10 August 1972. 7. On 15 August 1972, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 9 March through on or about 10 August 1972. 8. On 15 August 1972, the applicant underwent a mental status examination and the following findings were noted in the areas indicated: * Behavior – Normal * Level of Alertness – Fully Alert * Level of Orientation – Fully Oriented * Mood – Hyperactive * Thinking Process – Clear * Thought Content – Normal * Memory – Good 9. The examining physician also concluded the applicant's probable effectiveness for rehabilitation was poor and noted his impression that the applicant had no significant mental illness. He further indicated the applicant was mentally responsible, was able to distinguish right from wrong, was able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met medical retention standards. 10. The record also contains a Standard Form 88 (Report of Medical Examination) that shows the applicant underwent a complete separation physical examination on 15 August 1972. The clinical evaluation portion of this form shows the applicant was found normal in the psychiatric portion of the examination. It also shows the examining physician gave the applicant a physical profile rating of "111111" and a physical category rating of "A" and determined the applicant was fully qualified for retention/separation. 11. On 16 August 1972, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of an undesirable discharge (UD), and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 12. In his request for discharge, the applicant acknowledged he understood if his discharge request were approved he could receive a discharge under other than honorable conditions (UOTHC). He further stated he understood he could be deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under State and Federal laws. 13. On 30 August 1972, the separation authority approved the applicant's request for discharge and directed that he receive a UD. On 6 September 1972, the applicant was discharged accordingly. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 2 years, 1 month and 21 days of total creditable active military service and accrued 168 days of lost time due to AWOL. 14. On 2 May 1977, the Army Discharge Review Board (ADRB) voted to upgrade the applicant's discharge to a general discharge (GD) under honorable conditions under the provisions of the Special Discharge Review Program (SDRP) and Presidential Proclamation 4313. 15. On 15 June 1978, the applicant's case was reconsidered by the ADRB using the uniform standards established in Department of Defense (DOD) Directive 1332-28. The ADRB concluded the GD issued to the applicant under the provisions of the SDRP did not warrant affirmation. This determination was made based on the applicant's overall record of service. The ADRB proceedings informed the applicant that while this decision did not change the discharge he now had, it could impact his ability to receive VA benefits. 16. The documents provided by the applicant appear to show he is now suffering from post-traumatic stress disorder (PTSD) based on his RVN service. The majority of these documents are dated in 2006 and seem to be related to a VA claim. 17. The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977. The SDRP stipulated that all former service members who received UD's or GD's during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP. It further indicated that individuals who received a UD during the RVN era would have their discharges upgraded if they met one of the following criteria: were wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an HD from a previous tour of military service. 18. On 8 October 1977, Public Law 95-126 added the provision of 180 days of continuous absence, if it was used as the basis for a UOTHC discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. 19. Public Law 95-126 further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty UOTHC. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly-established uniform discharge review standards. On 29 March 1978, these newly-established uniform discharge review standards were published in DOD Directive 1332-28. 20. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses 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. 21. Under the provisions of chapter 10, Army Regulation 635-200, 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 charged, 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. A UOTHC discharge was normally appropriate for a Soldier who was discharged in lieu of trial by court-martial. However, the separation authority might direct a GD if such was merited by the Soldier's overall record during the current enlistment. An HD was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper. At the time of the applicant's discharge, a UD Certificate would normally be furnished to an individual who was discharged for the good of the service. 22. Army Regulation 635-200 provides that an HD 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his discharge should be upgraded because he was not evaluated properly for his mental status during his discharge processing has been carefully considered. However, the evidence does not support this claim. 2. Contrary to the applicant's argument that he did not undergo a proper mental status evaluation, the evidence of record confirms he underwent a mental status examination and a complete separation medical examination that found he suffered no significant mental illness at the time of his discharge processing. It further shows competent medical authority found he was fully medically qualified for retention/separation during this medical examination processing. 3. The evidence of record confirms the applicant was separated with a UD by reason of unfitness based on his extensive disciplinary history and his repeated incidents of misconduct. It also shows the ADRB upgraded the UD to a GD in May 1977 under the provisions of the SDRP; however, during a June 1978 review, the ADRB voted not to affirm the upgrade action under uniform discharge standards established in 1978 to comply with Public Law 95-126. 4. The evidence of record confirms that the discharge review process followed in this case was accomplished in accordance with the existing law and regulations in effect at the time and there was no error or injustice related to this process. Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, notwithstanding his RVN service, the UD he received accurately reflected his overall record of service at the time it was issued. 5. Notwithstanding the initial upgrade of his discharge under the SDRP based on his service in the RVN, it is clear the 1978 determination of the ADRB not to affirm this upgrade action under the uniform discharge review standards established in DOD Directive 1332-28 was the correct action to take based on the applicant's overall record of service. As a result, it is concluded that his overall record of service does not support affirmation of the GD issued to him under the provisions of the SDRP and does not support an upgrade of his discharge to an HD as he now requests. 6. Even if the applicant was diagnosed with suffering from PTSD in 2006, nearly 25 years after his discharge, this does not call into question the medical determinations made by competent medical authority at the time of his discharge. The applicant is further advised that the VA is the proper agency to contact regarding his entitlement to medical care for service-connected medical conditions. 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 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) AR20100027142 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100027142 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1