IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150010817 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: 21 June 2016 DOCKET NUMBER: AR20150010817 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: 21 June 2016 DOCKET NUMBER: AR20150010817 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, the son of a former service member (FSM), requests, in effect, the FSM's undesirable discharge be upgraded due to mental issues. 2. The applicant states, in effect: * his father, the FSM, signed up for the Army before he was born * his father and mother were never married; his mother moved out of State and would not allow his father to visit * when he examined the dates his father started having problems, he realized it was right around the date he (the applicant) was born * after he was born, a clear pattern could be seen in his father's behavior, as well as the lack of help the Army provided; his father suffered from depression * his father committed suicide on his birthday in 1991; he never got the help he needed * upgrading his discharge could provide peace of mind to the applicant and the FSM's surviving family members 3. The applicant provides: * birth certificate * death certificate * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 7 March 1970 * DD Form 4 (Enlistment Contract – Armed Forces of the United States) * DA Form 20 (Enlisted Qualification Record) with DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) 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 FSM enlisted in the Regular Army 5 February 1968. Following initial training, he was awarded military occupational specialty (MOS) 31M (Radio Relay and Carrier Operator). He was assigned to a unit at Fort Bragg, NC. 3. On or about 17 December 1968, he was assigned to the Student Brigade at Fort Gordon, GA, to attend the instructor's course for MOS 31M. 4. He accepted nonjudicial punishment (NJP) on three occasions while at Fort Gordon. a. 10 March 1969 – for three violations of the Uniform Code of Military Justice (UCMJ) (listed below). His punishment consisted of reduction to private/E-2, 30 days restriction, forfeiture of $50 for 2 months (a portion of the punishment (one month's forfeiture of $50) was suspended, but the suspension was later vacated on 14 April 1969). * unlawfully entering a garage of a person living in North Augusta, SC * disorderly conduct in a public place (North Augusta Police Station) by using loud and profane language * failing to sign out on pass using a DA Form 647 (Official Personnel Register) b. 10 April 1969 – for failing to go to his place of duty at the time prescribed. c. 15 April 1969 – for operating a privately-owned vehicle while drunk. 5. While assigned at Fort Gordon, he was tried by a special court-martial. Special Court-Martial Order (SPCMO) Number 367, dated 25 August 1969, issued by Headquarters, School Brigade (Provisional), U.S. Army Southeastern Signal School, shows: a. One specification of being absent without leave (AWOL) from 11 July 1969 to 4 August 1969. Consistent with his plea, he was found guilty. b. The sentence was adjudged on 13 August 1969 and consisted of 45 days of hard labor without confinement and reduction to the lowest enlisted grade. c. The sentence was approved by the convening authority on 25 August 1969. 6. SPCMO Number 386, dated 4 September 1969, issued by Headquarters, School Brigade (Provisional), U.S. Army Southeastern Signal School, shows, effective 8 September 1969, the unexecuted portion of the sentence to hard labor without confinement was remitted. 7. He was placed on orders for Vietnam and, in October 1969, he was assigned to the Transient Company, U.S. Army Personnel Center, Oakland, CA. On 8 October 1969, while at the Transient Company, he accepted NJP for being AWOL from 30 September 1969 to 7 October 1969. 8. He was assigned to a unit in Vietnam on or about 11 October 1969. 9. On 30 January 1970, his commander preferred charges against him for the following charges: a. One specification of violating a lawful general order by being in an off-limits area, not on official business. b. One specification of leaving his post as a sentinel in a hostile fire area before being regularly relieved. c. Three specifications of violating Article 134 (General Article), UCMJ, by: * threatening to injure unspecified superiors by saying, "Now some pigs are going to get hurt" * wrongfully possessing marijuana * breaking restriction 10. On 18 February 1970, the FSM consulted with counsel (an Army Judge Advocate General’s Corps officer). a. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. b. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). c. He elected not to submit statements in his own behalf. 11. He further acknowledged he: * had not been subjected to any coercion whatsoever by any person * understood, if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * understood, as a result, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * could expect to encounter substantial prejudice in civilian life 12. On 28 February 1970, the separation authority approved the FSM's request for discharge and directed the issuance of an Undesirable Discharge Certificate. On 7 March 1970, he was discharged accordingly. 13. His DD Form 214 showed he completed 2 years and 9 days of net active creditable service, with 24 days of lost time. He was shown as having 5 months of service in Vietnam. a. The authority for discharge was AR 635-200, chapter 10. The character of service was under other than honorable conditions. b. He was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 14. He petitioned the Army Discharge Review Board (ADRB) to upgrade his discharge on the basis that a Soldier with whom he had faced court-martial charges "beat all charges." As a result, that Soldier received an honorable discharge with full benefits. After reviewing his records, the ADRB found his discharge had been proper and equitable. On 18 February 1982, the ADRB denied his request. REFERENCES: 1. 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with post-traumatic stress disorder (PTSD) by a competent mental health professional. The Boards were to determine if it would be appropriate to upgrade the characterization of the FSM/applicant's service based on the revised PTSD criteria, detailed medical considerations, and mitigating factors. a. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations should be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. b. Although the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD, or any other behavioral health condition, at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. DISCUSSION: 1. The available evidence shows the FSM was discharged for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. a. Discharges under this chapter are voluntary. The FSM met with counsel, a military attorney, and afterward, voluntarily, willingly, and in writing, requested discharge in lieu of trial by court-martial. b. It appears all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 2. The FSM's death was very tragic, and while the manner of his death could be viewed as being consistent with depression, unfortunately there is no evidence the FSM was ever identified as having or was treated for any behavioral health condition while on active duty. There also is no documented proof that a properly certified behavioral health specialist, at any point after his separation from the Army, provided the FSM a diagnosis of depression. 3. The guidance given by the Secretary of Defense with regard to the upgrade of discharges under other than honorable conditions specifically addressed PTSD, and focused on the impact of exposure to combat on a Soldier's behavior. The Secretary directed Boards, such as this one, to assess whether this exposure could have resulted in behavior that caused an adverse discharge. If such a connection was found and there were no mitigating factors, the Board could consider upgrading the character of service. 4. The FSM did serve in Vietnam for a period of 5 months, but he demonstrated an ongoing recurrence of misconduct throughout his term of service, nearly all of which pre-dated his Vietnam service. As such, there does not appear to be a connection between his service in Vietnam and the conduct that led to his discharge. Additionally, the types of offenses committed varied, ranging from going AWOL to driving while drunk, and from failing to obey orders of his superiors to using threatening language toward his superiors. 5. His poor conduct served to diminish the overall quality of his service below that meriting either an honorable or a general discharge under honorable conditions. Based on the foregoing, there does not appear to be sufficient evidence to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010817 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010817 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2