RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 November 2007
      DOCKET NUMBER:  AR20070007788


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier
petition for an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, that the characterization of his
discharge was inappropriate given his medical condition at that time.

3.  The applicant provides five character references and an appeal of the
Department of Veterans Affairs (VA) denial of benefits.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's UD be upgraded to an honorable
discharge (HD); and that the applicant be awarded the Overseas Service
Ribbon (OSR) and National Defense Service Medal (NDSM).

2.  Counsel states, in effect, that the applicant was discharged during his
second tour in the Republic of Vietnam (RVN), yet subsequent documentation
confirms he has a substantial Post Traumatic Stress Disorder (PTSD)
history.

3.  Counsel also states that based on the time the applicant served
overseas in a war zone, he is entitled to the OSR.  He also states that the
applicant never received his NDSM despite serving during a qualifying
period.

3.  Counsel provides a statement is support of the application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
A2001064951, on
31 January 2002.

2.  During its original review of the applicant's case, after considering
the applicant's contentions that he suffered from a number of physical
conditions directly related to Agent Orange exposure in the RVN, and that
he never saw or spoke with a defense counsel, the Board found the applicant
voluntarily requested discharge to avoid a trial by court-martial, and that
his separation processing was accomplished in accordance with the
applicable regulation.

3.  The applicant submits five character references which discuss the
improvement in his character, his recent freedom from alcohol and drug
addiction, and his social adaptability problems.  He also provides a VA
appeal that concluded the medical evidence showed the applicant suffered
from a service connected PTSD and as a result was eligible for VA health
care.

4.  The applicant's record shows that he initially enlisted in the Regular
Army and entered active duty on 27 December 1967.  He was honorably
discharged for the purpose of immediate reenlistment on 24 September 1968.
The separation document (DD Form 214) he was issued at this time shows he
completed
8 months and 10 days of active military service and that during this period
of active duty service he had been awarded the NDSM and Expert Marksmanship
Qualification Badge with Rifle Bar.

5.  The record shows that on 25 September 1968, the applicant reenlisted
for
3 years.  His Enlisted Qualification Record shows that he served in the RVN
from 5 July 1969 through 4 July 1970 and again from 14 May through 17
September 1971.

6.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20
shows that he was promoted to specialist four (SP4) on 9 April 1971, and
that this is the highest rank he attained while serving on active duty.  It
also shows he was reduced to private/E-1 (PV1) on 3 July 1971.

7.  Item 41 ( Awards and Decorations) of the applicant's DA Form 20 shows
that during his active duty tenure, he earned the NDSM, Vietnam Service
Medal (VSM) and RVN Campaign Medal.  His record documents no acts of valor
or significant achievement.

8.  The applicant's disciplinary history during the enlistment under review
includes his acceptance of non-judicial 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:  25
January 1969, for two specification of failing to obey lawful orders; 6 May
1969, for failing to obey a lawful order; and 27 June 1971, for disobeying
a lawful order.  It also includes a 30 October 1969 Special Court-Martial
(SPCM) conviction of violating Article 116 of the UCMJ by causing a breach
of the peace and violating Article 134 of the UCMJ by communicating a
threat to a NCO.

9.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
medical treatment records or other documents that indicate the applicant
was suffering from a disabling medical or mental condition at the time of
his discharge processing.  His record is also void of a separation packet
containing the specific facts and circumstances surrounding his discharge
processing.  However, the record does contain a properly constituted DD
Form 214 that identifies the authority and reason for his separation.

10.  The DD Form 214 issued to the applicant upon his 28 November 1971
discharge shows he was separated under the provisions of chapter 10,
Army Regulation 635-200, in lieu of trial by court-martial, and that he
received an UD.  It also shows that he completed a total of 3 years and 26
days of creditable active military service and accrued 18 days of time lost
due to being absent without leave (AWOL).

11.  On 20 November 1973, the Army Discharge Review Board (ADRB), after
carefully considering the applicant's military records and all other
available evidence, determined the applicant was properly discharged and as
a result denied the applicant's request for an upgrade of his discharge.

12.  On 23 February 1976, the ADRB conducted a personal appearance hearing
and reconsidered the applicant's case in Buffalo, New York.  The applicant
and his counsel were present and testified at this hearing.  The ADRB
record of proceedings for this review shows the applicant was requesting an
upgrade of his discharge in order to reenter the Army and complete his six
year service obligation in light of a recent clemency decision by the
President, which gave deserters who shirked their duty in Vietnam a better
type of discharge.  The applicant and his counsel cited the applicant's
record of service and two tours of service in the RVN in support of their
request.  They did not cite a PTSD or any other medical condition as a
basis for their request for the applicant's discharge to be upgraded.  This
record of proceedings confirms a court-martial charge was preferred against
the applicant for sleeping on guard duty in the RVN and this was the basis
for his discharge.  Subsequent to consideration of all the evidence and
testimony presented at this hearing, the ADRB determined the applicant's
discharge was proper and equitable and denied the applicant's request for
an upgrade of his discharge.

13.  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 trial by court-martial.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a general discharge (GD) if such is merited by the Soldier's overall
record during the current enlistment.  An honorable discharge (HD) is not
authorized unless the Soldier's record is otherwise so meritorious that any
other characterization clearly would be improper. At the time of the
applicant's discharge the regulation provided for the issuance of an UD.

14.  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
after his discharge from the service may change, but any change does not
call into question the application of then existing fitness standards.

15.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards
policy.  Paragraph 5-4 provides guidance on the OSR.  It states, in
pertinent part, that it is awarded for successful completion of an overseas
tour, effective
1 August 1981.  It further indicated that the ribbon may be awarded
retroactively to those personnel who were credited with a normal overseas
tour completion before 1 August 1981 provided they had an Active Army
status on or after
1 August 1981.  There are no provisions for retroactive award to members
who were not in an active status as of 1 August 1981.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his request that his UD
be upgraded to an HD was carefully considered.  However, there is an
insufficient evidentiary basis to support granting the requested relief.

2.  Although the applicant provides character references and a VA appeal
document that indicate that his character has improved since his discharge
and that confirm he suffers from a service connected PTSD, these factors
are not sufficiently mitigating to support an amendment to the original
Board decision in this case.

3.  The applicant's record confirms he completed a 12 month tour in the RVN
on 4 July 1979 and that he completed an additional 8 months of service in
the RVN on 26 November 1971; however, his record documents no specific acts
of valor or significant achievement during this RVN service.  The record
does reveal an extensive disciplinary history that includes his acceptance
of NJP on three separate occasions, two of which he accepted while serving
in the RVN, and his conviction by a SPCM while he was serving in the RVN.


4.  Although the specific court-martial charge(s) that lead to his
discharge processing is not on file, the evidence of record does confirm
the applicant was charged with the commission of an offense punishable
under the UCMJ with a punitive discharge.  Procedurally he would have been
required to consult with defense counsel, and to have voluntarily requested
discharge from the Army in lieu of trial by court-martial.  He also would
have had to acknowledged that he understood he could be deprived of many or
all veterans' benefits as a result of receiving an UD and that he could
face substantial prejudice in civilian life as a result of receiving an UD.
 Absent evidence to the contrary, it is presumed that all requirements of
law and regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

5.  The applicant's record provides no indication that he suffered from a
disabling physical or mental condition at the time of his discharge
processing that would have warranted his separation processing through
medical channels.  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 after his discharge from the service may change, but any change
does not call into question the application of then existing fitness
standards.  As a result, there is insufficient evidence to support a
conclusion that the applicant's PTSD condition was a significant
contributing factor in the misconduct that resulted in his discharge.

6.  Further, given the applicant was attempting to reenter the Army in
1976, as indicated in the ADRB personal appearance hearing record, it
appears he or his counsel at the time did not believe he was suffering from
a PTSD that was so significant that it would have disqualified him from
further service at that time.  As a result, absent evidence confirming he
was suffering from a disabling medical or mental condition that would have
supported his separation processing through medical channels at the time of
his discharge, his current PTSD condition, while unfortunate, is not
sufficiently mitigating to support an upgrade of his discharge at this late
date.

7.  Counsel's request that the applicant's record be corrected to show he
was awarded the NDSM was also carefully considered.  However, the record
confirms the applicant was awarded the NDSM and that this award is properly
recorded on the applicant's DA Form 20 and on the DD Form 214 he was issued
on
24 September 1968.  As a result, no corrective action is required on this
matter.

8.  Counsel's request that the applicant be awarded the OSR was also
considered.  However, by regulation, in order to receive the OSR for a
completed overseas tour, a member had to be serving in an active status on
1 August 1981, the effective date of the award.  The evidence of record
confirms the applicant was discharged prior to the effective date of the
OSR, and as a result, he is not entitled to the OSR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ENA __  __DLL___  __RMN _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2001064951, dated 31 January 2002;
or to grant the additional relief requested by counsel.




                                  _____Eric N. Andersen ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070007788                           |
|SUFFIX                  |                                        |
|RECON                   |AR2001064951-2002/01/31                 |
|DATE BOARDED            |2007/11/20                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/11/28                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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