IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20160008574 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 14 June 2018 DOCKET NUMBER: AR20160008574 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, in effect, an upgrade of his character of service from under other than honorable conditions to an honorable. He also requests a formal hearing before the Board. 2. The applicant states, in effect: a. He volunteered to serve in the Army and was not drafted. He served his time in Vietnam, and due to that service, he reenlisted. He was accused of possession of marijuana but was innocent of the charge. He borrowed another Soldier’s vehicle and the marijuana was in the vehicle during a routine traffic stop. The charge came from a passenger in his vehicle. He was crushed when he was implicated and discharged as a result. The person responsible for his discharge was arrested and convicted for the charge. b. He is a 69 year old disabled amputee who is wheelchair bound and bedfast most of the time. He does not have long to live. He was a good Soldier and does not want to leave this world being anything but a patriot. He requests review of his friend’s case and to overturn his case. c. His medical records can be reviewed or discovered through the Citizens Medical Center Records Department or Ozarks Community Health Center. 3. The applicant provides: * DD Form 4 (Enlistment Contract-Armed Forces of the United States) * Page 4 of his DA Form 20 (Enlisted Qualification Record) 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, and 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 (RA) on 31 July 1967 and he held military occupational specialty 62L (Wheeled Tractor Operator). 3. He served in Vietnam from 3 March 1968 to 28 February 1969. He was assigned to Company C, 84th Engineer Battalion. 4. He was honorably discharged on 17 September 1969 for immediate reenlistment. His DD Form 214 for this period of service shows: * he completed 2 years, 1 month, and 7 days of active service with 9 days of lost time * he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960) 5. On 18 September 1969, he reenlisted in the RA. He was assigned to the 5th Engineer Battalion at Fort Leonard Wood, MO. 6. On 15 November 1969, he was arraigned at Headquarters, 5th Engineer Battalion, Fort Leonard Wood, and was tried by a summary court-martial for one specification of being absent without leave (AWOL) from 19 September 1969 to 24 September 1969. The court found him guilty and sentenced him to reduction to E-2, forfeiture of $29.00 pay, and extra duty for 45 days. 7. On 17 November 1969, the convening authority approved the sentence and ordered the sentence executed. 8. On 29 December 1969, he departed his unit in an AWOL status and on 26 January 1970, he was dropped from the rolls as a deserter. He returned to military control on 2 March 1970. He was placed on pre-trial confinement. 9. On 16 May 1970, his commander preferred court-martial charges against him for: * Charge I, one specification of being AWOL from 29 December 1969 to 2 March 1970 * Charge II, one specification of wrongfully possessing marijuana and one specification of wrongfully selling marijuana 10. On 22 June 1970, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested 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 for discharge he indicated or acknowledged he understood: a. he was making the request of his own free will and he had not been subjected to any coercion by anyone; b. if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; c. if such discharge was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and d. he elected to make a statement on his own behalf and stated: * he went to Vietnam in March 1968; he went on emergency leave for 30 days because his father was seriously ill, but his father subsequently died * he was reassigned to Fort Leonard Wood, MO; received an honorable discharge; and reenlisted for 3 years * he and his wife began having problems in 1969 and she ran away from home; he requested leave and it was denied, so he went AWOL to locate his wife and 2 years old son, but was unsuccessful * he received the following awards and decorations: * National Defense Service Medal * Republic of Vietnam Campaign Medal * Vietnam Service Medal * Letter of Appreciation from the Commanding General of the Rock Tiger Division of Korea * His unit received a unit citation and the Presidential Unit Citation * he had 32 months good time in the service, and if discharged, he would like to go home, attempt to locate his wife and child, and get a job and settle down 11. On 29 June 1970, the immediate commander recommended approval of the applicant’s request with the issuance of an Undesirable Discharge Certificate. On 7 July 1970, the intermediate commander also recommended approval with the issuance of an Undesirable Discharge Certificate. 12. On 28 July 1970, the separation authority approved the applicant's request for voluntary discharge in accordance with AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to E-1. Accordingly, the applicant was discharged on 5 August 1970. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 August 1970 shows: * 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 with his character of service shown as under conditions other than honorable * he completed 2 years, 8 months, and 6 days of active service with 110 days of lost time * he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar, National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with 60 Device 14. On 31 July 1979, the Army Discharge Review Board (ADRB) reviewed his discharge and found he was properly discharged. Accordingly, the ADRB denied his petition for a change in the type and nature of his discharge. 15. The applicant provided: * DD Form 4 documenting his reenlistment on 18 September 1969 * Page 4 of his DA Form 20, showing his campaigns, awards, and decorations 16. On 6 December 2017, the Army Review Boards Agency (ARBA) psychologist/medical advisor reviewed the applicant's records and rendered an advisory opinion in his case. He stated: a. The available record does not reasonably support PTSD (post-traumatic stress disorder) or another boardable behavioral health condition existed at the time of the applicant's military service. He was briefly treated for anxiety symptoms while in the stockade. He had a history of nervous trouble that existed prior to service (EPTS). His condition did not fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) warranting a separation through medical channels. No behavioral health (BH) conditions were present at time of misconduct and no BH conditions mitigated his misconduct. b. The applicant did meet medical retention standards for history of rubella infection, foot infection with lymphangitis, dog bite (rabies prophylaxis), right arm lacerations, history of fall from roller, history of physical assault, history of periorbital injury/bruising, EPTS headaches, dizziness (EPTS), cramps in legs (EPTS), nervous trouble (EPTS), and other conditions, in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. c. The applicant's medical conditions were duly considered during separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. (1) The applicant was separated under AR 635-200, chapter 10, in lieu of trial by court-martial. The applicant’s pattern of misconduct began within 2 months of entry onto active military service and continued throughout his service before, during deployment, and afterward (including civil arrest and confinement) thru separation. (2) Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 17. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service. b. Paragraph 1-9d provided that an honorable discharge was a separation with honor. The honorable characterization was conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude, and where a member had served faithfully and performed to the best of his ability and had been cooperative and conscientious in doing his assigned tasks. c. 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 was not sufficiently meritorious to warrant an honorable discharge. (1) A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization. (2) A general discharge could be issued if an individual had been convicted of an offense by general court-martial or had been convicted by more than one special court-martial in the current enlistment period or obligated service or any extension thereof. The decision was discretionary; if there was evidence that the individual’s military behavior had been proper over a reasonable period of time subsequent to the conviction(s), he could be considered for an honorable. 2. AR 635-40, in effect at the time, established policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. 3. AR 40-501 provides medical retention standards and is used by medical evaluation boards to determine which medical conditions will be referred to a physical evaluation board. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board as defined in AR 635-40. The physical evaluation board will make the determination of fitness or unfitness. 4. AR 15-185 states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. Based on his overall record of indiscipline, the separation authority believed the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel and that his misconduct rendered his service unsatisfactory. The separation authority did not believe the applicant's service during his second term of service rose to the level required for an honorable or a general discharge. 3. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant appear to be sufficient to render a fair and equitable decision at this time. 4. According to the medical review, the applicant's medical conditions were considered during separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant did not have mitigating medical or behavioral health conditions that for the offenses of AWOL and wrongful possession of marijuana that led to his separation from the Army. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character of service or reason for the discharge in this case. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008574 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008574 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2