MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002077371

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge (GD).

APPLICANT STATES: In effect, that he served in the Republic of Vietnam (RVN) from 1970 to 1972 and was suffering from a Post Traumatic Stress Disorder (PTSD), which he was unaware of at the time. He states that while preparing the base for the Tet Offensive, one of the officers in charge noticed that he was not himself and referred him for medical treatment. He states that he was medically evacuated from the RVN to Fort Sam Houston, Texas, based on his suffering from war related stress, which determined he should be medically discharged. However, he convinced them that he should be returned to duty with follow-up treatment. The treatment was effective for a while, but when the treatment stopped he was quickly given a bad discharge. He states that his post service achievements include alcohol rehabilitation and steady job employment for the past 4 years. He now requests an upgrade of his discharge based upon his service to his country, so that he may receive the respect and honor he deserves for his service to his country. In support of his application, he submits two separation documents (DD Form 214) and a Correction to DD Form 214 Report Of Separation From Active Duty (DD Form 215).

COUNSEL CONTENDS: In effect, the applicant suffered from a PTSD when he was medically evacuated from the RVN, and his condition was barely understood because this disorder was not known at the time. Counsel states that the conventional treatment for PTSD at the time was rest; however, it is now known that this condition requires long term care and counseling. Counsel further states that in addition the applicant also suffered from alcoholism, which was secondary to his PTSD, at the time of his discharge. Counsel comments that the applicant served his country when others were running from the draft, avoiding military service, and he served in the RVN for a period of time longer than most soldiers. As a result of this service, counsel contends that the applicant is deserving of an upgrade of discharge, which would authorize him health benefits from the Department of Veterans Affairs, and clemency from a nation grateful for his service in the RVN.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant’s military records show that he was honorably separated for the purpose of immediate reenlistment on 7 August 1968, after completing
10 months and 23 days of creditable active military service. He immediately reenlisted for 3 years on 8 August 1968, and he continuously served on active duty until he was discharged UOTHC on 15 September 1972.

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The applicant’s record shows that he was trained and served in military occupational specialty (MOS) 52B (Power Generator Equipment Operator/Mechanic), and that the highest rank he attained while serving on active duty was specialist/E-4 (SP4/E-4). It also shows that he served in the RVN from 29 September 1970 to 10 February 1972, and that he earned the following awards during his tenure on active duty: Vietnam Service Medal; Republic of Vietnam Campaign Medal with 60 Device; and the National Defense Service Medal.

The applicant’s record documents no other specific acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following four separate occasions for the offenses indicated: 10 April 1969, for wrongfully damaging government property and wrongfully appropriating a government vehicle; 17 April 1969, for breaking restriction; 16 April 1969, for being absent without leave (AWOL) from his unit on 10 April 1969; and 23 April 1970, for two specifications of failure to go to his appointed place of duty;. In addition, the applicant was twice convicted by a special court-martial on the following dates for the offenses indicated: 1 April 1971, for disobeying a lawful order from a superior commissioned officer and striking a lieutenant; and 5 November 1971, for being AWOL from 7 August to
10 August 1971, driving while intoxicated, wrongfully appropriating a government vehicle, and violating a lawful general regulation.

The specific facts and circumstances pertaining to the applicant’s discharge processing are not on file in the record. However, the file does contain the front page of the charge sheet that confirms that a court-martial charge was brought against the applicant for an offense(s) for which a punitive discharge was authorized under the UCMJ. In addition, the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial, is on file in the record.

On 3 August 1972, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum allowable punishment; and the possible effects of an UOTHC discharge. Subsequent to this counseling, he voluntarily requested to be discharged for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10,
Army Regulation 635-200.

On 14 August 1972, a complete review of the applicant’s physical and mental examinations was conducted by the Chief, Department of Clinics, Fort Hood, Texas. This review failed to reveal any defects that would have contributed to the applicant’s misconduct. This medical authority finally determined that the applicant was physically and mentally fit for duty without profile limitations, and that he was responsible for his acts, and was able to understand and participate in board proceedings.
On 21 August 1972, the appropriate authority approved the applicant’s discharge request and directed that he receive an Undesirable Discharge (UD), and that he be reduced to the lowest enlisted grade.

On 15 September 1972, the applicant was discharged accordingly. At the time of his discharge, he had completed a total of 3 years, 4 months, and 20 days of creditable active military service, and he had accrued 263 days of time lost due to AWOL and confinement.

On 26 March 1980, the Army Discharge Review Board determined the applicant’s discharge had been proper and equitable and it denied his request for an upgrade to his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after court-martial charges have been preferred. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1. The Board notes the contention of the applicant and his counsel that his discharged should be upgraded based on his undiagnosed PTSD was an extenuating factor that contributed to the applicant’s misconduct that ultimately resulted in his discharge. However, the Board finds insufficient evidence to support this claim.

2. PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The condition is described in the current DSM-IV, pages 424 through 429. The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge. The specific diagnostic label given to an individual’s condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

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3. The evidence of record confirms that the applicant’s extensive disciplinary history began prior to his serving in the RVN, and that he in fact accepted nonjudicial punishment on four separate occasions prior to his arrival in the RVN.
Further, a complete evaluation of the applicant’s physical and mental status was conducted by proper medical authority during his separation processing. This evaluation failed to reveal any physical or mental defects that contributed to the applicant’s misconduct. Therefore, while it does not question the fact that the applicant now suffers from a PTSD, the Board finds insufficient evidence to support a conclusion that this condition was the primary reason or even a sufficiently mitigating factor for the misconduct that led to his discharge. Thus, the Board concludes that the requested relief is not warranted on this basis.

4. The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army but the evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense(s) under the UCMJ.

5. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also notes that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge. Finally, the Board finds the applicant’s discharge accurately reflects his overall record of service.

6. At the request of the applicant, the Board also considered his post service conduct and accomplishments. However, it found that these factors, even when coupled with his record of service, are not sufficiently mitigating to warrant an upgrade of his discharge at this time.

7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MKP__ __JLP _ __MMB __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002077311
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/01/14
TYPE OF DISCHARGE	UD BCD, DD, UNCHAR)
DATE OF DISCHARGE	19720915
DISCHARGE AUTHORITY	AR635-200 . . . . .
DISCHARGE REASON	In Lieu of Trial by CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9407
2.	144.9323
3.	144.9221
4.	144.9220
5.
6.