IN THE CASE OF: BOARD DATE: 29 September 2016 DOCKET NUMBER: AR20150007308 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: 29 September 2016 DOCKET NUMBER: AR20150007308 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: 29 September 2016 DOCKET NUMBER: AR20150007308 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 under honorable conditions (general) discharge to an honorable discharge. 2. The applicant states he joined the Army and volunteered for Vietnam. He had a good service record prior to Vietnam. He developed mental illness and was air evacuated from Vietnam for depression in 1970. He thought he had an honorable discharge. 3. The applicant provides a computer disc that contained his Department of Veteran Affairs (VA) medical records. 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 the cases 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. 2. The applicant enlisted in the Regular Army on 8 January 1969. He held military occupational specialty 62G (Quarryman). He served in Germany from 20 June to 21 October 1969. 3. He served in Vietnam from 22 December 1969 to 17 October 1970. He was promoted to pay grade E-4 on 22 January 1970. 4. On 5 April 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for violating lawful orders on three occasions on 31 March 1970. His punishment consisted of a forfeiture of pay. 5. On 17 July 1970, the applicant's company commander requested the applicant be barred from reenlisting. He stated counseling of the applicant had been to no avail and all other rehabilitative actions had failed. The applicant's conduct and efficiency were unsatisfactory. 6. His records contain: a. A Standard Form (SF) 513 (Clinical Record – Consultation Sheet), dated 15 August 1970, showing he was referred to psychiatry for drug dependence (cocaine and heroin) and admitted to a hospital for treatment of withdrawal from heroin on 16 August 1970. b. An SF 513, dated 20 September 1970, wherein it was requested he undergo an evaluation for possible drug dependence withdrawals. c. An AF Form 565-4 (Clinical Record Coversheet), dated 2 October 1970, showing he was diagnosed with a schizophrenic reaction, paranoid type, acute, and drug abuse, amphetamines. He was scheduled for evacuation to a U.S. Army Hospital. d. An SF 538 (Abbreviated Clinical Record), dated 12 October 1970, showing he was admitted for hospitalization for acute paranoid schizophrenia. Drug abuse was also noted at that time. 7. His DA Form 20 (Enlisted Qualification Record) shows he was evacuated to Valley Forge General Hospital, Phoenixville, PA, for further treatment and disposition. 8. He was reported absent without leave (AWOL) on 30 December 1970 and dropped from the rolls (DFR) on 3 December 1970. He surrendered and returned to military control on 3 February 1971. 9. On 10 March 1971, he was convicted by a summary court-martial of one specification of being AWOL from 30 November 1970 to 3 February 1971. The court sentenced him to a reduction to pay grade E-1 and a forfeiture of $80.00 pay for one month. The convening authority approved the sentence and ordered it executed on 11 March 1971. 10. He was again reported AWOL on 2 June 1971 and was DFR on 2 July 1971. He surrendered and returned to military control on 21 July 1971. 11. On 28 July 1971, a DD Form 458 (Charge Sheet) was completed by the Commander, Personnel Control Facility (PCF), Fort Lewis, WA, charging the applicant with one specification of being AWOL from 2 June to 21 July 1971. 12. On 30 July 1971, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged that counsel fully advised him that he was charged with the commission of an offense punishable under the UCMJ (court-martial) with a punitive discharge. He also acknowledged that he could be discharged under other than honorable conditions, furnished an Undesirable Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected to submit a statement in his own behalf. 13. In his statement, the applicant stated he did not get into any trouble in the Army until his last few months in Vietnam. He began using drugs in Vietnam and was hospitalized under the amnesty program. He also had a combined nervous breakdown and was medically evacuated to Valley Forge Hospital. When he was released from the hospital's psychiatric department he went AWOL. Upon his return, he was sent to the PCF where he experienced a lot of racial trouble and violence. His experiences only made him dislike the Army greater. Upon his release from the PCF, he again went AWOL to go to Fort Lewis in an attempt to receive the discharge that he was previously denied at Fort Riley, KS. He wanted to be discharged only if he could receive a decent discharge that would entitle him to the benefits he worked for. He did not know what to do, was very confused, and stayed drunk all the time. He was experiencing several stressors to include drug and alcohol dependence, financial stressors, and worry about his mother’s health. His experiences with drugs had altered his ability to think and reason clearly. He was submitting his discharge request in hopes it would be accepted before he got himself into any more trouble that would hurt him and the service. 14. An SF 88 (Report of Medical Examination) shows he underwent an examination on 6 August 1971 and he was found medically qualified for separation. The form does not indicate he was diagnosed with any medical conditions or injuries. 15. On 13 August 1971, the separation authority approved the applicant’s request and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1. 16. He was discharged accordingly on 18 August 1971. He completed 2 years and 2 months of active service and had 151 days of time lost. His service was characterized as under other than honorable conditions. 17. On 20 June 1973, the ABCMR denied his request for a medical discharge. 18. On 24 August 1973, the Army Discharge Review Board denied his request for re-characterization of his discharge. 19. On 15 June 1977, the ABCMR concluded that the circumstances in the case warranted changing the applicant's undesirable discharge to a general discharge. 20. On 26 July 1977, he was issued a new DD Form 214 showing his service characterized as under honorable conditions and showing that he had been issued a General Discharge Certificate. 21. He provided a computer disc that contained his VA medical records showing: * November 2009 – he was diagnosed with adjustment disorder with depressed mood * May 2011 – he was referred to the Post-Traumatic Stress Disorder (PTSD) Program; it was noted that he was not interested in receiving PTSD treatment * July 2014 – he received outpatient treatment in mental health for depression * April 2015 – he was diagnosed with depression and Opioid Use Disorder 22. On 2 May 2016, the applicant's case was forwarded to an Army Review Boards Agency clinical psychologist, for review. The clinical psychologist stated: a. Military medical records indicate the applicant served satisfactorily his first 10 months in service, but developed disciplinary problems to include drug addiction and receipt of an Article 15 for failure to obey a lawful order and violation of two lawful orders for not returning a lost ID card and possessing another person’s ration card. Military medical records indicate that he began abusing drugs while in Vietnam and was hospitalized for withdrawal from cocaine and heroin before being medically evacuated for inpatient hospitalization in October 1970. Although he was afforded medical services for drug and alcohol conditions and was evacuated to Valley Forge General Hospital, he did not complete treatment due to going AWOL from 30 November 1970 to 3 February 1971. b. He received a summary court-martial for his first AWOL and faced court- martial charges for a second AWOL from 2 June and 21 July 1971, but his request for a discharge in lieu of trail by court-martial was approved. In a personal statement, he indicated he wanted to be discharged from the Army before getting into more trouble and that he was experiencing several stressors to include drug and alcohol dependence, financial stressors, worry about his mother’s health, and confusion and difficulty thinking clearly due to heavy drug use. c. On the 7 June 2015 application, he contended that he was medically evacuated from Vietnam in 1970 for depression and should be granted an honorable discharge due to developing mental illness in Vietnam. The clinical psychologist was asked to determine if there is a nexus between the mental health information/diagnoses contained in documentation and the misconduct that resulted in the applicant’s discharge. d. Based on thorough review of available medical records, the applicant's behavioral health conditions are not considered mitigating for his misconduct that led to an early separation from the Army. Although he has been in remission for drug addiction and has received behavioral health treatment for depression at a VA Medical Center since 2006, the presence of drug addiction or potentially untreated depression during his time in service does not mitigate his actions as the nature of behavioral health symptoms are not reasonably related to his disciplinary history for the Article 15, summarized court martial, and total of 151 days of lost time. 23. The advisory opinion was provided to the applicant on 13 September 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. DISCUSSION: 1. The evidence shows the applicant was medically evacuated from Vietnam for drug withdrawal treatment. After receiving medical treatment in a state-side hospital he twice departed AWOL for a total of 151 days of time lost. His disciplinary record shows the receipt of one Article 15, one summary court-martial, and the charges for which he elected to request discharge in lieu of trial by court-martial. The separation authority approved his discharge and he was discharged accordingly. 2. On 15 June 1977, the ABCMR determined the evidence of record warranted an upgrade of his undesirable discharge to a general discharge. He was issued a new DD Form 214 showing his service was characterized as under honorable conditions and that he had been issued a General Discharge Certificate. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. An advisory official has opined that his behavioral health conditions do not mitigate his misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007308 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007308 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2