MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 October 2003
                  DOCKET NUMBER: AR2003090324

         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. Klaus P. Schumann.		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		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: Upgrade of his undesirable discharge to honorable.

APPLICANT STATES: In effect, that he was given an undesirable discharge for discipline problems after his return from duty in Vietnam. The applicant believes that his discipline problems stem from an undiagnosed Post Traumatic Stress Disorder (PTSD) and that his current undesirable character of discharge prevents him from obtaining Veterans Affairs (VA) benefits to include mental health care for PTSD. In support of his application the applicant submitted a psychological report signed by a Board Certified Expert in Traumatic Stress, and a VA Form 21-4138 (Statement in Support of Claim).

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

The applicant enlisted in the Army as an Infantry Indirect Fire Crewman on 3 August 1971. After completing basic and advanced individual training he was assigned to Vietnam on 5 January 1972. He returned to United States on 25 August 1972 and was separated from the Army on 27 December 1974 with an undesirable discharge.

The applicant's DD Form 214 (Report of Separation From Active Duty) shows in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he was awarded the Air Medal, the Vietnam Service Medal, and the "Republic of Vietnam Commendation Medal."

The applicant's DA Form 20 (Enlisted Qualification Record) shows the following entries in item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent To Normal Date ETS): 5 December 1972 through 10 December 1972, 6 days absent without leave (AWOL); 30 January 1974 through 29 March 1974, 57 days AWOL; 18 April 1974 through 13 September 1974, 148 days AWOL to desertion.

The applicant's DD Form 214 shows in item 27 that he had a total of 211 days lost time during his service.

A DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 13 December 1972, shows that non-judicial punishment was imposed on the applicant for AWOL during the period 5 December 1972 through 11 December 1972. His punishment consisted of eight days of extra duty ending 21 December 1972 and reduction in grade to Private First Class (suspended until 13 January 1972).




A DA Form 2627-1, dated 23 February 1973, shows that non-judicial punishment was imposed on the applicant for AWOL during the period 0700, 14 February 1973 through 1630, 14 February 1973. His punishment consisted of 14 days extra duty, reduction in grade to PFC (suspended until 31 March 1973), and forfeiture of sixty dollars for a one month (suspended until 31 March 1973).

A DA Form 2627-1, dated 16 May 1973, shows that non-judicial punishment for stealing four lug nuts valued at eighteen cents each. His punishment consisted of reduction to Private First Class and extra duty for seven days.

A DA Form 2627-1, dated 8 August 1973, shows that non-judicial punishment was imposed on the applicant for AWOL for the period 24 July 1973 through 30 July 1973. His punishment consisted of reduction to the grade of Private First Class, forfeiture of fifty dollars for a period of one month, and extra duty for a period of ten days.

A DA Form 2627-1, dated 26 October 1973, shows that non-judicial punishment was imposed on the applicant for AWOL during the period 23 October 1973 to 25 October 1973. His punishment consisted of reduction to the grade of Private Two/Pay-Grade E2, forfeiture of fifty-five dollars for one month, and extra duty for a period of ten days.

Special Court-Martial Order Number 12, dated 21 March 1974, shows that the applicant was charged and convicted of AWOL for the period 4 December 1973 through 30 January 1974. His punishment consisted of confinement at hard labor for two months, forfeiture of one hundred fifty dollars per month for two months, and reduction in grade to Private/Pay grade E1.

The applicant's records also show that he was AWOL for the period 17 April 1974 through 13 Sep 1974. However, his record contained no evidence of judicial or non-judicial punishment for this offense.

The applicant's records show that, on 19 June 1974, he was convicted of grand theft (purse snatch) in South Lake Tahoe, California, and received 120 days confinement in El Dorado County Jail, Placerville, California. The applicant's records do not reflect when he was returned to military control.

On 16 September 1974, the applicant was briefed by legal counsel on his option to submit a request for separation for the good of the service in lieu of court-martial and the resulting loss of Army and veterans benefits associated with this type of discharge which includes an undesirable characterization of service.




The applicant's records show that on 16 September 1974, he acknowledged, in writing, that he understood that a discharge for the good of the service will make him "ineligible for many or all benefits administered by the Veteran's Administration" and that he "may be deprived" of his "rights and benefits as a veteran under both Federal and State law."

On 20 September 1974, the applicant submitted a voluntary request for separation from the Army for the good of the service.

In his application for separation for the good of the service, the applicant states, "I came in the Army for the money. I'm asking for this discharge because the Army has ruined my marriage, ruined my life and the Army has nothing for me and I have nothing for the Army. I went AWOL because I'm tired of all the bullshit and I'm not going to stay in the Army if I'm sent back to duty. I filled out this Chapter 10 request in the Feb. 74 and was sent back to duty and I went AWOL again and I will continue to go AWOL till I do get this Chapter 10. I do understand that I will not get any benefits such as Loans and Education and training. I understand, and will accept an undesirable discharge."

On 23 September 1974, the applicant underwent a separation medical examination and was found fit for release from active duty.

During a mental status evaluation on 7 October 1974, the applicant's behavior was normal, and he was fully alert and fully oriented. He was in a depressed mood, his thinking process was clear and his thought content was normal. The applicant was found to be mentally responsible, able to distinguish right from wrong and had the mental capacity to understand and participate in board proceedings.

On 16 December 1974, the separation authority approved the applicant's voluntary request for discharge and directed and undesirable discharge.

On 27 December 1974 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.

On 13 August 1975, the applicant submitted a request to the Army Discharge Review Board for upgrade of his undesirable discharge to an honorable discharge.

However, on 3 February 1976, the Army Discharge Review Board determined that the applicant was properly discharged and denied his request for upgrade.



On 27 February 2003, a licensed psychologist conducted a clinical interview and mental status examination of the applicant and provided a written psychological report detailing his findings.

The clinical interview provides a brief history in which the applicant contends, in effect, that upon his return from Vietnam he had conflicts with his commanding officer which resulted in his undesirable discharge, he has Hepatitis C, he has been told by his doctors that he has PTSD, he smokes but has not had a drink in sixteen years and that he stopped taking street drugs at the same time he stopped drinking and he works with a PTSD counselor with the Veterans Administration. The applicant describes seeing mutilated bodies throughout his tour duty in Vietnam and his worst trauma experience as being with a booby trapped, five hundred pound bomb rigged by the Vietcong which caused a group of thirty-six to be medically air lifted out of the area.

Also, in the clinical interview the applicant describes, in effect, that he has a tendency to blow with anxiety, has had nightmares for 31 years, has a sensitivity to touch, moderate to severe problems with short term memory, difficulty with concentration and anger.      

During the mental status evaluation the psychologist observed, in effect, that the applicant cried on several occasions, that his voice was clear but that he rambled in his speech, and appeared to have difficulty in concentrating. The applicant was found to be of average to above average intelligence and displayed no evidence of delusions, hallucinations or disturbed thinking.

Based on the clinical interview and mental status examination, the psychologist contends that "the description of his problems and behavior during his Vietnam combat and years since that time would suggest strongly to me that [applicant's name omitted] suffers from PTSD and probably has had this disorder since being in Vietnam. It would also seem likely that the PTSD symptoms were related to his behavior on his return to the United States and the difficulties that went on that left him with an undesirable 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of court-martial. 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 advisory opinion(s), it is concluded:

1. The Board considered the applicant's and the medical doctor's contention that the applicant's undiagnosed PTSD was "likely" related to his behavior and the resulting difficulties he experienced upon his return from Vietnam. However, the board noted that the applicant received a complete medical and mental health evaluation prior to his discharge from the Army, which found no indication of mental or physical defect and determined that he was fit for separation. Therefore, the Board determined the February 2003 psychological report regarding the applicant's mental status in 1972, 1973 and 1974 was purely speculative and is insufficient as proof the applicant's condition clearly caused the behavior he exhibited and that his condition existed during his time in service.

2. The Board noted that the applicant acknowledged in writing and was briefed prior to his discharge, that he would lose many or all Army and veterans benefits if his request for discharge for the good of the service were approved. Additionally, he received a list of federal veteran's benefits that would be affected by the issuance of an undesirable discharge certificate.

3. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

4. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service which includes over 200 days of AWOL, at least five non-judicial punishments, and one court martial conviction in a period of less than three years.

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

__AAO__ __HOF__ __MMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090324
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031016
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19741227
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	Good of the Service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.360	Administrative Discharge
2.
3.
4.
5.
6.