MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 30 October 2003
                  DOCKET NUMBER: AR2003089242

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz		Member
Mr. Larry C. Bergquist		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that his records show excellent service up to October 1968 when the drugs that were everywhere in Vietnam began to cloud his judgment. He states that this problem followed him to the United States and upon his return he began to experience Post Traumatic Stress Disorder (PTSD) symptoms; however, he received no help for either problem. He states that he eventually gave up on his military career and requested the discharge he received, but he now regrets the mistakes he made in his youth. In support of his application, he provides Department of Veterans Affairs (VA) medical treatment records for PTSD.

COUNSEL CONTENDS: In effect, that the applicant has been diagnosed with PTSD due to combat stressors, and has now expressed his desire to be “bonafide” as an American. Counsel states that in the applicant he sees the young boy who came home from Vietnam bewildered and clearly not deprogrammed, as was the case with so many returning veterans. Counsel indicates that the applicant stated that when President Carter granted amnesty to others that fled to Canada, he thought he may have a chance to upgrade his discharge. However, this did not work out and in his confusion and pain he changed his name. Counsel claims that this is a soldier whose record shows that he did not turn in the face of the enemy and who clearly did not understand the consequences when he accepted his discharge. Counsel further states that the applicant has done much for the community and the local American Legion, and he along with many other veterans have accepted the applicant as an equal comrade. Counsel states that he hopes for a favorable review, and he would gladly speak in the applicant’s behalf at any hearing.

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

He enlisted in the Regular Army and entered active duty on 12 July 1967. He was trained and served in military occupational specialty (MOS) 67V (Helicopter Repairman), and the highest rank he attained while serving on active duty was specialist four (SP4).

The applicant’s Enlisted Qualification Record (DA Form 20) shows that his first assignment after training was at Fort Eustis, Virginia, where he served until being reassigned to the Republic of Vietnam (RVN) in February 1968. He served in the RVN from 21 March 1968 through 23 March 1969. At the conclusion of his tour in the RVN, he was assigned back to Fort Eustis.

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The applicant’s DA Form 20 confirms that he departed his unit at Fort Eustis without authority on 10 November 1969, and that he was placed in an absent without leave (AWOL) status on that date. On 10 December 1969, he was dropped from the rolls of the organization and he remained away for 59 days until returning to military control at Fort Ord, California on 7 January 1970. The applicant again departed from his unit AWOL on 22 January 1970, and he remained away for 11 days until 1 February 1970.

Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows that during his tenure on active duty he earned the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated: 5 August 1968, for carelessly discharging a weapon in the barracks and disobeying a lawful order from the troop commander; 14 July 1969, for failing to go to his prescribed place of duty; and 1 October 1969, for speeding and defective equipment.

The applicant’s disciplinary record also includes his convictions by both a special and summary court-martial. On 7 November 1968, he was convicted of wrongfully possessing 26.8 grams of marijuana by a special court-martial. On
24 February 1970, he was convicted of two periods of AWOL by a
summary court-martial.

On 10 April 1970, the applicant’s unit commander notified the applicant that he was recommending him for separation under the provisions of paragraph 6a, Army Regulation 635-212, by reason of unfitness with an UD. The unit commander cited the applicant’s frequent incidents of a discreditable nature with military authorities, as evidenced by his extensive disciplinary history.

On 14 April 1970, the applicant consulted with legal counsel and was advised of the basis for his contemplated separation and its effects, and of the rights available to him. Subsequent to this counseling, the applicant elected to waive his right to consideration of his case by and personal appearance before a board of officers. He also elected not to submit a rebuttal statement in his own behalf and he acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life as a result of his UD and that he could be ineligible for many or all benefits as a veteran under both State and Federal law.



On 27 April 1970, the separation authority approved the applicant’s separation and directed that he receive an UD and that he be reduced to the lowest enlisted grade. On 1 May 1970, the applicant was discharged accordingly.

The separation document (DD Form 214) issued to the applicant confirms that he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness. It also confirms that at the time of his discharge, he had completed a total of 2 years, 7 months, and 10 days of creditable active military service and he had accrued 70 days of time lost due to AWOL.

The applicant’s Official Military Personnel File (OMPF) contains no medical records that indicate the applicant was treated for or suffered from a psychologically or medically disqualifying condition while he was on active duty or at the time of his discharge.

On 30 May 1972, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his UD. On 8 December 1972, the ADRB reviewed the applicant’s case and determined that his discharge had been both proper and equitable, and it voted to deny his request.

VA medical treatment records from 2002 that were provided by the applicant show that he is currently being treated for a PTSD.

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), and is described in pages 424 through 429 of the current DSM. However, at the time of the applicant’s discharge, 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.

Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness. An undesirable discharge was normally considered appropriate for members separating under these provisions.

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

1. The applicant’s request to upgrade his discharge, counsel’s supporting statement, and the fact that the applicant is currently being treated for PTSD were carefully considered. However, these factors were not found to be sufficiently mitigating to warrant the requested relief.

2. The evidence of record and independent evidence provided by the applicant provides no indication that the applicant was ever treated for or suffered from a psychological or medical condition while he was on active duty. Although the applicant has now been diagnosed with PTSD, this specific diagnostic label given to the applicant a decade or more after his separation does not call into question the application of then existing fitness standards that were applied at the time of his discharge.

3. The evidence of record confirms that the applicant was notified of the contemplated separation action by his unit commander and that he consulted legal counsel. It further shows that after being advised of the basis for the contemplated separation action and its possible effects, the applicant voluntarily elected to waive his right to have his case considered by a board of officers, and he elected not to submit a rebuttal statement in his own behalf.

4. The record further confirms that all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and the character of the applicant’s discharge accurately reflects his overall record of service.

5. 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.

6. 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

__CLG__ __EL___ __LB___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089242
SUFFIX
RECON
DATE BOARDED	2003/10/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1970/05/01
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unfitness
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2.
3.
4.
5.
6.