MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 4 November 2003
         DOCKET NUMBER: AR2003086101


         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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 essence, that his under other than honorable conditions (UOTHC) discharge be upgraded to that of a general discharge under honorable conditions so that he may be eligible to receive veterans benefits.

In support of his request, he submits a letter from the Department of Veterans Affairs (DVA), Greater Los Angeles Healthcare System, Post-traumatic Stress Disorder (PTSD) Outpatient Services Team, dated 24 August 1999; and two letters from the DVA, Medical Center, West Los Angeles, dated 25 February 2000 and 27 January 2003.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

On 1 April 1969, the applicant enlisted in the Regular Army for a period of 3 years. He completed the training requirements and was awarded military occupational specialty (MOS) 11B (Infantryman). On 2 September 1969, he was assigned to Vietnam.

On 16 December 1969, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for violating a lawful order on 16 December 1969 to wear the appropriate uniform. On 30 December 1969, NJP was imposed against him for leaving his post (while in a hostile zone) without being properly relieved on 19 December 1969 and for breaking restriction on 20 December 1969. His punishment included restriction, the forfeiture of pay, and reduction from pay grade E-3 to pay grade E-2.

On 17 July 1970, the applicant was convicted by a special court-martial of failure to go to his appointed place of duty a the time prescribed on 8 and 9 May 1970; of disobeying a lawful order given by a commissioned officer; of abandoning his post; breaking restriction on 9 May 1970; and of being absent without leave (AWOL) from 28 May-12 July 1970. His punishment included the forfeiture of pay and 2 months' confinement at hard labor (suspended).

On 30 October 1970, the applicant returned to the United States and, on 23 November 1970, he was assigned to Fort Benning, Georgia.

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On 5 March 1971, NJP was imposed against the applicant for failure to report to his appointed place of duty at the time prescribed on 3 March 1971. His punishment included reduction from pay grade E-4 to pay grade E-3, and forfeiture of $39 pay per month for 1 month (suspended for 90 days). On 17 April 1971, the suspended portion of the applicant's sentence was vacated.

On 11 June 1971, NJP was imposed against the applicant for being AWOL from the Overseas Replacement Station, Fort Jackson, South Carolina from 28 May-
2 June 1971. His punishment included the forfeiture of $75 pay per month for 2 months. He was assigned to Germany from 19 June 1971-30 April 1972.

On 28 August 1971, the applicant was convicted by a summary court-martial of failure to go to his appointed place of duty (Reveille Formation) at the time prescribed. His punishment included reduction from pay grade E-3 to pay grade E-2, the forfeiture of $139 pay per month for 1 month, and 60 days of restriction.

The available evidence shows that the applicant was rated excellent on both his conduct and efficiency ratings between April and September 1969. Both his conduct and efficiency are rated unknown between September and October 1969. His was rated poor on both his conduct and efficiency ratings between March and September 1970. Both his conduct and efficiency are rated satisfactory between November 1970 and May 1971. Both his conduct and efficiency are rated unsatisfactory between June and December 1971 until he was separated.

The applicant's records no longer contain his notification of the recommendation for separation. However, a previous Memorandum of Consideration completed by this Board on 30 March 2000 shows that, on 21 September 1971, the applicant's commander notified him of his intent to recommend that he be separated under the provisions of Army Regulation 635-212, for unfitness. He was advised of his rights.

On the same date, the applicant consulted with legal counsel and requested a personal appearance before an administrative separation board. He acknowledged that he understood the basis for the contemplated separation action. He did not submit a statement in his own behalf.

On 24 September 1971, both a mental status evaluation and a medical examination cleared the applicant for separation.

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On 19 November 1971, a board of officers determined the applicant was unfit for retention in the service. The board recommended that he be separated with a UD. On the same date, a legal review by the Staff Judge Advocate's Office determined the recommendation was legally sufficient.

On 3 December 1971, the final approval authority waived further rehabilitative requirements and directed that the applicant be separated in pay grade E-1 due to unfitness with a UD.

On 10 December 1971, the applicant was separated under the provisions of
Army Regulation 635-212, for unfitness, with a UD. His DD Form 214 incorrectly shows that he enlisted on 1 April 1968; that he had completed a total of 3 years, 6 months and 29 days of active military service and that he had 41 days of lost time due to being AWOL. In fact, he enlisted on 1 April 1969 and he completed 2 years, 6 months and 29 days of active military service.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A UD was normally considered appropriate.

In June 1999, the applicant appealed to this Board for an upgrade of his discharge and his request was denied due to his failure to establish a basis for the upgrade of his discharge and due to failure to timely file.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.

The letters the applicant provided contend that he suffers from service-related PTSD and that his discharge should be upgraded. The psychiatrist states in the letter dated 25 February 2000 that the applicant has been a patient under his care since October 1998; that the applicant's history prior to serving in the military has been evaluated; that he saw active combat as an infantryman from September 1969-October 1970; and that he consistently provided a history of symptoms of PTSD during his tour in Vietnam and continuing unabated since being separated in 1971. The psychiatrist also states the applicant sustained an injury during a mortar attack; that he received the Purple Heart; and that he experienced combat traumas including witnessing the deaths of friends and

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comrades at close range. The applicant was initially referred for psychiatric care in 1970 and he reported his nerves were on edge and that he jumped at the slightest sounds. The psychiatrist states that he has no doubt that this reflects the earliest manifestations of PTSD. The applicant's behavior was profoundly affected by his psychiatric difficulties and he was ultimately separated with a UD, a diagnosis that was not codified until 1980. Immediately after his separation, the applicant reports he felt depressed; withdrawn and uncomfortable around civilians; and he experienced profound emotional numbness. He was unable to hold a job for any length of time; he was terminated from numerous positions due to repeated conflicts with coworkers and supervisors. He has been continuously unemployed for 16 years. He developed alcoholism during his military service and it continued intermittently for approximately 20 years. He has been sober the last 12 years. He remains enrolled with the PTSD Outpatient Services Team where he attends individual and group psychotherapy sessions, PTSD veterans groups, and medication clinics. His substance abuse cannot be considered causative, as his symptoms and functional impairments have now persisted despite prolonged sobriety.

Further, the applicant's diagnostic interview revealed a cluster of symptoms consistent with the diagnosis of PTSD defined in DSM IV; including but not limited to, severe insomnia with nightmares almost every night recalling battle traumas; intrusive memories; paranoia; panic attacks once or twice per week; persistent auditory hallucinations; near continuous suicidal ideation with at least ten near fatal attempts; irritability; frequent de-realization with disorientation to time and place; hyper-vigilance; exaggerated startle response; distractibility; emotional numbness; extreme avoidance of cues reminiscent of his military service as well as avoidance of non-essential social contact. He has been treated aggressively with antidepressant; anxiolytic and anti-psychotic medications that have resulted in partial stabilization; but not remission of his psychiatric symptoms. The applicant has been fully compliant with his treatment plan. His current medication includes doxepin (150 mg per day) and risperidone (2 mg per day). The applicant is completely disabled and unemployable due to persistent and treatment-resistant symptoms of PTSD. His current symptoms fall into three primary categories and cause the following vocational impairments:
(1) Re-experiencing: nightmares, daytime fatigue, intrusive memories, flashbacks, and impaired attention and concentration on the job. (2) Hyper-arousal: insomnia, daytime fatigue, hyper-vigilance and auditory hallucinations, impaired attention and concentration on the job, paranoia, irritability and exaggerated startle, impaired adjustment to job stress, and inappropriate and potentially dangerous interactions with coworkers. (3) Avoidance: diminished interest, detachment and suicidal thoughts, impaired adjustment to job stress, and inappropriate and potentially dangerous interactions with supervisors.

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In conclusion, the psychiatrist states the applicant's occupational and social impairments are chronic and complete, causally related to his military service, and have persisted despite aggressive management with medication and psychotherapy. His prognosis is considered poor given the evidence of treatment resistance. He urges the Board to consider the applicant for a service-connected disability due to PTSD.HhHJHHHIhhhlll


The applicant's DVA representative states in the letter dated 27 January 2003 that the applicant received excellent enlisted evaluation reports until he was wounded in Vietnam and assigned to Germany. The applicant was given a hard time and most soldiers in his unit had no combat experience and were unable to relate to an injured combat veteran. As a consequence of his escalating symptoms of PTSD, the applicant was unable to cope with his new non-combat environment. The DVA is unable to compensate the applicant for his PTSD due to him having a UD. However, he has been determined eligible for medical treatment for PTSD and a back condition (wound) that have been determined to be of service connection. The DVA representative's contention is that the applicant's difficulties were a direct result of the traumatic impact of his combat service. The applicant performed meritorious service under combat conditions and was wounded in the service of his country.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 December 1971, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 10 December 1974.

1. The current application is dated 27 January 2003 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

2. In September 1971, the applicant underwent both a mental status evaluation and a medical examination and there is no evidence that he was suffering from any type of illness. He has provided a psychiatric diagnosis that was made a great number of years after he was separated and it does not provide sufficient evidence to demonstrate that he was not in good health at the time of separation.

3. The applicant may request that this Board issue him a DD Form 215 (Correction to DD Form 214) to show his correct date of entry into the Army is 1 April 1969.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

Prior to reaching this determination, the Board looked at the applicant's available records. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__fne___ __gjw___ __au____ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003086101
SUFFIX
RECON
DATE BOARDED	20031104
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19711210
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.