IN THE CASE OF: BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150014905 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: 26 January 2017 DOCKET NUMBER: AR20150014905 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: 26 January 2017 DOCKET NUMBER: AR20150014905 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, if effect, an upgrade of his undesirable discharge. 2. The applicant states his undesirable discharge was unjust. He had knots all over his body from Agent Orange and all his children were infected. He cannot read or write. At the time of his discharge, he was sick, depressed, and did not know what type of discharge they gave him. He had attention deficit hyperactivity disorder (ADHD) and could not read; he only has a 5th grade education. Because he did not know, he and his children have been infected/affected. The aid office informed him of his undesirable discharge. He can sign a medical release so the Board can get his medical records. 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 on 8 July 1969 and he held military occupational specialty (MOS) 57A (Duty Soldier). On 12 September 1969, he was assigned to the 287th Field Service Company, Fort Campbell, KY. 3. On 8 October 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without authority from his appointed place of duty. 4. On 1 June 1970, he arrived in Vietnam and was assigned to the 403rd Transportation Company. 5. The complete facts and circumstances surrounding his discharge processing are not known. However, it appears in February 1971 court-martial charges were preferred against the applicant for assaulting a superior officer and/or for willfully disobeying a lawful order of a superior commissioned officer. 6. On 23 February 1971, he consulted with legal counsel and after being advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge and the procedures and rights available to him he submitted a request for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request, he acknowledged that he had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it. 7. He further acknowledged that he understood if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He acknowledged he understood that as a result of such a discharge, he might be ineligible for many or all Amy benefits, many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both State and Federal laws. He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life. 8. His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 26 February 1971, stating the applicant was pending trial by a special court-martial in violation of Article 90 (Assaulting or Willfully Disobeying a Superior Commissioned Officer), UCMJ, and a possible discharge under chapter 10, AR 635-212 (i.e. AR 635-200). 9. On 15 March 1971, the separation authority approved his request for a discharge and directed the issuance of an Undesirable Discharge Certificate. On 19 March 1971, he departed Vietnam and on 20 March 1971 he was discharged accordingly. 10. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of AR 635-200, chapter 10 - for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with an under other than honorable conditions characterization of service. 11. Item 17 (Physical Status) of his DA Form 20 (Enlisted Qualification Record) shows that as of 26 February 1971 his PULHES was 1-1-1-1-1-1 and that he had no assignment limitations. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. In the processing of this case an advisory was received on 15 December 2016 from the Psychiatrist, Army Review Boards Agency (ARBA). The advisory official opined: a. The applicant entered the Army on 8 July 1969 and held MOS 57A. He served in Vietnam from 1 June 1970 to 19 March 1971. On 20 March 1971, he was separated from the Army with an under other than honorable conditions characterization of service under the provisions of AR 635-200, chapter 10, SPN 246 - for the good of the service. While it is not clear in his records, it appears he was separated for violation of Article 90, UCMJ. He is now applying to the ABCMR requesting a discharge upgrade contending that he was sick and depressed at the time of his discharge from the Army and was suffering from Agent Orange exposure. A letter from the ABCMR was mailed to the applicant on 22 June 2016 requesting copies of medical documentation to support his health issues. As of today, no response to the letter has been received. b. The ARBA psychiatrist was asked to review the applicant’s request. Documentation reviewed included the applicant’s ABCMR application and his military personnel records. No military medical records were available for review. No civilian or VA medical documentation was provided for review. The electronic military medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. c. Review of his military personnel record indicates that the record is void of documentation of any behavioral health (BH) related symptoms or treatment. There is no evidence to indicate that the applicant failed to meet medical retention standards under the provisions of AR 40-501 (Standards of Medical Fitness) while he was on active duty. d. The ARBA psychiatrist was asked to determine if the applicant had post-traumatic stress disorder (PTSD) or another BH condition during his time in the military. There is no evidence of PTSD or any BH condition in the applicant’s military personnel records. His military medical records were not made available for review. The applicant has not submitted any post-service medical documentation. Therefore, based on the information currently available, there is insufficient evidence to support the applicant’s contention that he was sick, depressed, and suffering the effects of Agent Orange at his time of discharge from the Army. 14. On 15 December 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 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. 2. The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties. An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness. A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations. A profile containing one or more numerical designations of "3" signifies the individual has one or more medical conditions that may require significant limitations. DISCUSSION: 1. Although the complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case, the available evidence shows that while serving in a war zone he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel and being advised of the procedures and rights that were available to him, he requested a discharge in lieu of trial by court-martial. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. It appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The type of discharge directed and the reason for discharge appear to be appropriate considering all the available facts of the case. 3. Notwithstanding the applicant's contention that he was he was sick and depressed at the time of his separation, as confirmed by the advisory official, his available record is void of any evidence and he has not provided any evidence to support this contention. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014905 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014905 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2