IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150012336 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: 3 November 2016 DOCKET NUMBER: AR20150012336 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002082833 on 5 August 2003. ___________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: 3 November 2016 DOCKET NUMBER: AR20150012336 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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * he was denied benefits due to the characterization of his service * he was drafted by authorities despite having mental problems; he began receiving social security benefits at age 10 * he should not have been inducted because he could not follow orders, yet, he was sent to Vietnam * upon return from Vietnam, his behavioral problems got worse and he was readmitted back into the Fortwood Mental Health Center, Chattanooga, TN * he was incarcerated from 2014 to 2015 and he is now homeless 3. The applicant does not provide any additional evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002082833 on 5 August 2003. 2. The applicant did not provide any new documentary evidence. However, he provides a new argument which was not previously considered and warrants consideration by the Board. 3. The applicant was not inducted into the Army of the United States. He enlisted in the Regular Army on 3 May 1968. He completed basic and advanced individual training and he was awarded military occupational specialty 51B (Carpenter). 4. He started his service in Vietnam on or about 23 September 1968. He was assigned to Company D, 34th Engineer Battalion. 5. In Vietnam, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 8 February 1969, willfully disobeying a lawful order from a brigade commander not to be in an off limits area * 2 March 1969, unlawfully cutting a civilian with a knife 6. On 3 May 1969, he was convicted by a special court-martial of one specification of failing to go at the time prescribed to his appointed place of duty, two specifications of disobeying lawful orders, two specifications of wrongfully possessing marijuana, and one specification of having in his possession another Soldier’s ration card. The court sentenced him to a forfeiture of pay for 6 months and confinement at hard labor for 4 months. The convening authority approved the sentence on 6 May 1969. 7. On 24 June 1969, he was investigated by the U.S. Army Criminal Investigation Command for possessing drugs in an off-limits area. Following an investigation, he was apprehended by military police for wrongfully possessing 19 marijuana cigarettes. 8. On 5 July 1969, the applicant's immediate commander notified the applicant of his intent to recommend him for discharge from the service under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to unfitness. 9. The applicant acknowledged receipt of the separation memorandum on 8 July 1969. He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge under other than honorable conditions, and of the procedures/rights that were available to him. He acknowledged he could expect to encounter prejudice in civilian life and that he could be denied benefits as a veteran under both Federal and State laws. He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a personal statement in his own behalf. 10. In connection with this separation action, he underwent a mental status evaluation by a military psychiatrist on 14 July 1969. The evaluation revealed the applicant: * was unable to adjust to the Army and seemed rather vague regarding his difficulties * had a long history of disturbed behavior with poor functioning and was unstable for further retention * was diagnosed with schizoid personality, chronic, severe, manifested by suspiciousness and seclusiveness, existed prior to service, not in line of duty * met retention standards of AR 40-501 (Standards of Medical Fitness) and was found mentally responsible, able to distinguish right from wrong, and able to adhere to the right * was cleared for separation from the military under the provisions of AR 635-212 11. Subsequent to his acknowledgement, his immediate commander initiated separation action against him under the provisions of AR 635-212 because of unfitness. The immediate commander noted that the applicant had been counseled on numerous occasions but failed to respond positively. The chain of command recommended approval. 12. On 25 July 1969, the separation authority approved the applicant’s discharge under the provisions of AR 635-212 due to unfitness and directed he be furnished an Undesirable Discharge Certificate. The applicant returned to the continental United States and he was discharged on 1 August 1969. 13. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of AR 635-212 by reason of unfitness with a separation program number (SPN) of 28B (unfitness). His character of service was under other than honorable conditions. He completed 1 year, 1 month, and 5 days of active service and he had 54 days of lost time. 14. On 25 March 1982, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 15. The applicant's case was forwarded the Office of The Surgeon General (OTSG) for review. OTSG rendered an advisory opinion on 26 August 2016 referencing the Diagnostic and Statistical Manual-5th Edition; AR 40-501 (Standards of Medical Fitness) with rapid revisions, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Separations), dated 6 September 2011. The OTSG official stated: a. The applicant entered active duty on 3 May 1968 and was discharged under other than honorable conditions on 1 August 1969, in accordance with AR 635-212. He served in Vietnam from September 1968 to July 1969. The misconduct that led to his discharge included failure to obey a lawful order, cutting a Vietnamese national on the cheek with a knife, failure to obtain a pass, and wrongful possession of marijuana. b. The applicant requested that the Board upgrade his discharge. OTSG was asked to determine if the applicant's behavioral health condition(s) contributed to the misconduct that resulted in his discharge under other than honorable conditions. This opinion is based solely on the information provided by the Board. c. The applicant asserts he should not have been inducted into the Army as he had been treated for mental health problems since the age of 10 and received Social Security Disability Insurance. He observed, "I could not follow orders and was sent to Vietnam...upon returning, my behavior problems got worse." He submitted as medical documentation a letter dated 15 November 2004 from Fortwood Center, Inc., confirming that he was being treated for PTSD and major depression. d. Although he was diagnosed with personality disorder while in service, he was not separated for that reason. There is insufficient information regarding his psychiatric condition prior to military service to determine if a behavioral health condition contributed to the misconduct that led to his discharge. 16. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal or provide additional comments. He did not respond. REFERENCES: AR 635-212, then in effect, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. a. 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. b. 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 AND CONCLUSIONS: 1. The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his two instances of NJP, one court-martial conviction, a poor attitude, and his unwillingness to become a productive Soldier. Accordingly, his chain of command initiated elimination action against him. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and his character of service is commensurate with his overall record of military service. 2. The applicant enlisted in the Regular Army in May 1968. It is unknown if the applicant disclosed his mental health history at the time of enlistment. It is also unknown if, despite his mental health, Army officials at the military entrance station found him qualified for enlistment. Nearly 50 years have passed since he enlisted and the Board is not privy to his mental health status at the time of his enlistment. 3. An Army psychiatrist conducted a mental status evaluation and diagnosed him with a preexisting condition of chronic and severe schizoid personality, manifested by suspiciousness and seclusiveness that existed prior to service. This preexisting condition was determined to be not in line of duty. Despite this mental health condition, he met retention standards of AR 40-501. He was found mentally responsible, able to distinguish right from wrong, and able to adhere to the right. He was cleared for separation from the military under the administrative provisions of AR 635-212. 4. OTSG reviewed his medical records and noted that, although he was diagnosed with personality disorder while in service, he was not separated for that reason. There is insufficient information regarding his psychiatric condition prior to military service to determine if a behavioral health condition contributed to the misconduct that led to his discharge. 5. While he contends he should not have been allowed to enlist because he could not follow orders, his record shows he was able to conform to military standards and follow orders because he successfully completed his initial entry training and was awarded a military occupational specialty. Multiple reviews found the reason for his discharge and the characterization of his service were both proper and equitable. The quality of his service did not meet the standards of acceptable conduct and performance required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012336 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012336 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2