BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160004799 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 BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160004799 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20130007437 on 5 December 2013. _____________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. BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160004799 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 the previous Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20130007437, dated 5 December 2013. Specifically, he requests his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect: * he failed to properly adjust to military life * he spoke to two different Inspector Generals (IG); one recommended him for a unit transfer * he received numerous Article 15s and had numerous problems * his drug and alcohol abuse became addictions to him * he was doing well in the Army until he was transferred to Germany * if he would have received treatment for his problems, he would have completed his service obligation * he has had numerous incarcerations since his discharge * a discharge upgrade would be a great moment in his life and afford him the opportunity to be eligible for medications and housing * he is currently homeless after being released from the Bureau of Prisons on 26 January 2016 3. The applicant provides a hand-written continuation statement to his application. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130007437 on 5 December 2013. 2. The applicant provides a new argument in his application to the Board, wherein he contends, in effect, that if he had received treatment for his problems he would have completed his service obligation. This contention was not considered by the Board in its initial consideration of his request. 3. The applicant enlisted in the Regular Army on 21 April 1969. Following the completion of his initial entry training, he was awarded military occupational specialty 76R (Missile Repair Parts Specialist). The highest rank/grade he attained while serving on active duty was specialist four (SPC)/E-4. 4. The applicant was assigned, on or about 13 October 1969, to the 4th Ordnance Company, Miesau Army Depot, Federal Republic of Germany. 5. The applicant accepted nonjudicial punishment (NJP) on the following dates, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ): a. On 19 November 1969, for being disorderly on or about 8 November 1969, and for willfully destroying military property on or about 11 November 1969. b. On 21 January 1970, for disobeying a lawful order by a superior noncommissioned officer and for being absent from his appointed place of duty on or about 19 January 1970. c. On 5 February 1970, for failing to go to his appointed place of duty at the prescribed time on or about 2 February 1970. d. On 3 April 1970, for, having knowledge of a lawful order, failing to obey the same by missing bed check on or about 30 March 1970. 6. Army Europe (AE) Form 3087 (Report of Psychiatric Evaluation), dated 22 May 1970, shows the applicant was evaluated by a licensed psychiatrist on 15 May 1970, after which he was diagnosed with "passive aggressive personality." This medical professional stated: a. The applicant was referred to the clinic by his commanding officer, who was contemplating separating the applicant from service under Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). His unit reports that the applicant's conduct and efficiency were unsatisfactory and that he did not get along with his peers. Since November 1969, he had received five Article 15s and he was in his assigned unit (579th Ordnance Company) on a rehabilitative transfer. b. He appeared to be of average or above average intelligence and related in a goal directed, goal oriented manner with no evidence of psychotic, neurotic, or organic mental disorder. Because of his failure of past rehabilitative efforts and lack of motivation, it was doubtful that further rehabilitative efforts would prove beneficial either to the man or the Army. c. The findings and conclusions were that he was mentally responsible, able to distinguish right from wrong, and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. He had no mental disease or defect sufficient to warrant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed necessary by command. 7. The applicant accepted NJP on 10 June 1970, under the provisions of Article 15 of the UCMJ, for stealing merchandise from a German radio store and for unlawfully carrying a concealed weapon, to wit: a switchblade knife, on or about 13 April 1970. 8. Special Court-Martial Order Number 10, issued by Headquarters, U.S. Army Advanced Weapons Support Command on 24 August 1970, shows the applicant plead guilty and/or was convicted before a special court-martial on 7 August 1970, of violating the following Articles of the UCMJ: a. One specification of Article 86; specifically, for absenting himself, without authority, from his place of duty (AWOL), on or about 17 June 1970. b. Three specifications of Article 92; specifically, for, while having knowledge of a lawful order issued by his commanding officer, failing to obey such orders on three occasions, on or about 13 June, 14 June, and 16 June 1970. c. One specification of Article 121; specifically, for stealing personal property from another Soldier, on or about 2 May 1970. His sentence was adjudged on 7 August 1970; his sentence consisted of confinement at hard labor for three months, forfeiture of $80.00 pay per month for six months, and his reduction to the rank/grade of private (PV1)/E-1. The sentence was approved on 24 August 1970; however, the confinement in excess of 30 days was suspended for three months unless sooner vacated. 9. The applicant's immediate commander notified him on 7 August 1970 of his intent to initiate separation actions against him in accordance with Army Regulation 635-212, by reason of unfitness. The commander cited the applicant's numerous Article 15s and lack of motivation to be productive in military service. Additionally, he noted the applicant's resentment of authority and his repeated expressions of his desire to be separated from the U.S. Army. The applicant acknowledged receipt of the action the same date. 10. The applicant met with counsel on 7 August 1970 and was advised of the basis for the contemplated separation action by reason of unfitness. He was advised of his rights, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures that were available to him. He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He also acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf. 11. The applicant's immediate commander formally initiated separation action against him on 7 August 1970, under the provisions of Army Regulation 635-212, by reason of unfitness. The commander stated all efforts had been expended to rehabilitate him and they were met with negative results. The commander stated the following as reasons for separation: * his behavior both on and off duty * he was rehabilitated to this unit for his actions in the 4th Ordnance Company * his apprehension by the German police for larceny and carrying a switchblade knife * his apprehension by the military police for larceny and being suspected of possession of drugs * his apprehension by the military police assisting a German National over the fence of Nelson Barracks * his conviction by a special court-martial of AWOL, failure to obey orders, and larceny 12. The separation authority approved the applicant’s discharge on 1 October 1970, under the provisions of Army Regulation 635-212 by reason of unfitness, and directed he be reduced to the lowest enlisted grade and be issued an Undesirable Discharge Certificate (DD Form 258A). 13. The applicant was discharged on 19 October 1970. 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 Army Regulation 635-212, with Separation Program Number (SPN) 28B, by reason of unfitness. His DD Form 214 further confirms his service was characterized as under other than honorable conditions. He completed 1 year and 5 months of total active service with 28 days of time lost. 14. The applicant's record is void of evidence, nor does he provide any, that supports his contention that his misconduct would have been avoided if he would have receive some type of medical treatment. There is no evidence he sought assistance from his chain of command, the chaplain, or self-referred through medical channels to resolve his proclaimed addiction issues. 15. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. It is not an investigative agency. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-212, in effect at the time, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. a. Action was to be taken to separate an individual for unfitness when, in the commander's opinion, it is clearly established that: despite attempts to rehabilitate or develop him/her as a satisfactory soldier further effort is unlikely to succeed; or rehabilitation is impracticable or he/she is not amendable to rehabilitation measures; or an unfitting medical condition is not the direct or substantial contributing cause of his unfitness. An individual separated by this reason will normally be furnished an undesirable discharge certificate. b. Paragraph 6a provided that an individual was subject to separation for Unfitness when one or more of the following conditions existed: (1) Frequent incident of a discreditable nature with civil or military authorities. (2) Sexual perversion including but not limited to: lewd and lascivious acts; indecent exposure; indecent acts with, or assault upon, a child or other indecent acts or offenses. (3) Drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana. (4) An established pattern of shirking. (5) An established pattern showing dishonorable failure to pay just debts. (6) An established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant requests that his under than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant contends his discharge was caused by his failure to adjust to military life and his inability to get treatment for his addictions. The available records are void of any documentation showing he sought assistance from his chain of command, Army agencies, or self-referred through medical channels to resolve his proclaimed addiction issues. 3. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of Army personnel, as evidenced by his numerous Article 15s, issues with civilian authorities, conviction by a special court-martial, and 28 days of lost time. His chain of command tried to provide him rehabilitative efforts by transferring him to another unit; however, the applicant continued his pattern of misconduct. 4. Accordingly, his chain of command recommended the applicant's elimination from the Army. The applicant's discharge was carried out in accordance with the applicable regulation, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004799 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004799 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2