RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 February 2004
         DOCKET NUMBER: AR2003090689


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

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert Duecaster		Member
Mr. Melvin H. Meyer		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his undesirable discharge be upgraded to general.

2. The applicant states that he served in combat, was awarded the Combat Infantryman Badge (CIB), and several other awards. However, his problems did not occur until he returned from combat.

3. The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge), a DD Form 215 (Correction to DD Form 214), and a letter from the Los Angeles County Military and Veterans Affairs Office.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on 10 January 1973, the date of his discharge. The application submitted in this case is dated 13 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. At the age of 19 years, he was inducted on 20 April 1971, as a light weapons infantryman. He served in Vietnam from 7 January to 16 October 1972. He was promoted to pay grade E-3 effective 29 January 1972.

4. On 4 May 1972, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for sleeping at his post. His punishment consisted of a reduction to the pay grade of E-1 and forfeiture of pay. His unit of assignment is shown as A Company, 1^st Battalion, 12^th Cavalry, 1^st Cavalry Division.

5. Charges were preferred against the applicant on 2 November 1972, for being absent without leave (AWOL) from 2 August to 15 October 1972 (75 days).

6. On 2 November 1972, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued. He elected not to submit a statement in his own behalf.

7. The applicant underwent a mental status evaluation which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

8. On 5 December 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge. The applicant was discharged on 10 January 1973. He had a total of 1 year, 6 months, and 8 days of creditable service and had 75 days of lost time due to AWOL.

9. The applicant's medical records are unavailable for review by this Board.

10. The applicant provided a copy of his DD Form 215, dated 2 February 1976, which shows item 30 of his DD Form 214 was corrected to read "DD Form 1953A Clemency Discharge issued pursuant to Presidential Proclamation Number 4313."

11. The applicant's records contain a copy of a letter, dated 26 February 1976, from the Assistance Adjutant of the Reserve Component Personnel and Administration Center. The letter informed the applicant that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313 and that he could apply to the Army Discharge Review Board for an upgrade of his discharge.

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

13. The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Vietnam Campaign Medal, one Overseas Service Bar, and the Marksmanship Qualification Badge with Rifle Bar.

14. The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served as a light weapons infantryman (11B) with Headquarters and Headquarters Company (HHC), 1^st Battalion, 12^th Cavalry, 1^st Cavalry Division in Vietnam. There are no orders in the applicant’s personnel records which show that he was awarded the CIB.

15. The applicant provides a letter from the Los Angeles County Military and Veterans Affairs Office that states he served in Vietnam for 9 months and was awarded medals for his Vietnam service. Upon his rotation to the United States, no debriefing was provided or adjustment counseling. The applicant's maturity at the time of his return from the combat zone in Vietnam played a key role in his discharge. He was authorized 30 days leave upon his return from combat. He turned himself in and was informed that he would be discharged and that his discharge would be changed to general under honorable conditions, which did not occur. It also states that the applicant suffered from Post Traumatic Stress Disorder (PTSD) and other Vietnam service related problems.

16. Army Regulation 635-200 sets forth the basic authority for 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 trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable

17. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former soldiers who voluntarily entered into and completed an alternate public work program specifically designated for former soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. A clemency discharge does not restore veterans benefit; rather, it restores Federal and, in most instances state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original characterization of service, undesirable, would be retained.

18. PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III. The condition is described in the current DSM IV, pages 424 through 427. While psychiatrists have only categorized PTSD as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, soldier’s heart, effect syndrome, combat fatigue and traumatic neurosis. During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis. Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public. While PTSD was not recognized as a specific illness at the time of the applicant’s separation from the service, the fact that an individual might not be fit for further military service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 which was in effect at the time of his separation. The Army established standards and procedures for determining fitness for retention and utilized those procedures and standards in evaluating individuals at that time. 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.

19. The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

20. Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. The Awards Branch of the Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

21. Army Regulation 600-8-22 shows that while the applicant was assigned to Vietnam he participated in two campaigns. The regulation also provides that a bronze service star is authorized for the Vietnam Service Medal for each campaign participated in.

22. Department of the Army Pamphlet 672-3 shows that the applicant's unit while he was assigned was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS :

1. 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.

2. The type of separation directed and the reasons therefore were appropriate considering all of the available facts of the case.
3. The applicant’s contentions have been considered by the Board. The applicant was issued a Clemency Discharge pursuant to Presidential Proclamation 4313. It is noted that the Clemency Discharge did not provide for an upgrade of the applicant's discharge.

4. The applicant has failed to show evidence that he experienced readjustment problems or PTSD during his period of service. While the applicant contends that he suffered from what would later be named PTSD, there is no indication that he was unable to distinguish right from wrong and adhere to the right. As such, even if he had PTSD while he was on active duty, it would not constitute a defense for his acts of misconduct.

5. The evidence of record shows the applicant served as a light weapons infantryman (11B) with A Company and with HHC, 1 ^st Battalion, 12 ^th Cavalry, 1 ^st Cavalry Division while serving in Vietnam. Therefore, he is entitled to correction of his records to show that he was awarded the Combat Infantryman Badge.

6. The applicant participated in two campaigns and is entitled to two bronze service stars associated with the Vietnam Service Medal.

7. The applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation. Therefore, he is entitled to correction of his records to show this award.

BOARD VOTE:

__rw____ ___rd___ __mm____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION


1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was awarded the CIB, the Vietnam Service Medal with two bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his undesirable discharge.




                  ____Robert J. Wagner___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090689
SUFFIX
RECON
DATE BOARDED	20040219
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19730110
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	360
2.	157
3.
4.
5.
6.