RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070009209 


	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

Ms. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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, that his discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that his discharge should be upgraded to an honorable discharge because he suffers from Post Traumatic Syndrome (PTSD), since serving in Vietnam.  He states, that he was drafted in 1967 and served his 2 year enlistment from April 1967 to April 1969.  He served in Vietnam from August 1967 to August 1968.  Once discharged he found it difficult to assimilate back into civilian life and believed that it would be best to reenlist in the Army.  He soon discovered that, although he did not return to Vietnam, he continued to have readjustment problems in the military.  He never understood at the time that he might be suffering from a mental health problem based on his experiences in Vietnam.  It was not until just a few years ago that he like many other service members who served in Vietnam, discovered that he was suffering from the condition now known as PTSD.  He believes that his problems started, after his discharge in 1969, then after his reenlistment, and then subsequent to his second discharge in 1974, he believes, were all the result of his PTSD conditions.  In the 1970’s, no one new or spoke of PTSD.  It was not until early 2005, that he became aware that he might be suffering from PTSD.  He started receiving counseling and treatments and then filed a claim for VA compensation benefits in February 2005.  He was recently awarded supplemental Security Income from the Social Security Administration primarily based on his PTSD diagnosis.  Furthermore, his reenlistment in 1969 was for 4 years.  His reenlistment should have ended in July 1973.  Although he was court-martialed in 1972, the decision and charges were dismissed in August 1974.  He believes that if charges had not been initiated, he would have separated in July 1973 and would not have been subject to any further military justice.  Finally, he requests that the ABCMR grant an upgrade based on the inconsistencies of his discharge and his long standing PTSD condition.   

3.  The applicant provides two self-authored letters and a letter from the Social Security Administration in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 16 July 1969, the applicant reenlisted in the Regular Army for a period of
4 years, with 2 years of prior active service which included a tour in Vietnam.  His Military Occupational Specialty was (MOS) 12B (Combat Engineer).  The highest grade he attained was pay grade E-4.

3.  On 9 August 1971, the applicant accepted nonjudicial punishment (NJP) for not having in his possession a valid driver’s license and for not having his vehicle properly registered.  His imposed punishment was a forfeiture of $20.00 pay.

4.  On 24 February 1972, the applicant accepted NJP for not wearing the proper head gear and for the wrongful appropriation of a military vehicle at a value of about $2,880.00 the property of the United States government.  His imposed punishment was a reduction to pay grade E-3 and a forfeiture of $50.00 pay.

5.  On 21 September 1972, the applicant was convicted by a General Court-Martial of 5 specifications of the wrongful sale of Marijuana.  He was sentenced to confinement at hard labor for 8 months, a reduction to pay grade E-1, a forfeiture of $200.00 pay per month for 8 months and a Bad Conduct Discharge.  On 28 June 1974, the applicant’s conviction was set aside after being heard by the Courts of Military Appeals.  All rights, privileges, and property of which the applicant was deprived by virtue of the findings of guilty and the sentence so set aside were restored.  The reasons why his court-martial conviction was set aside are missing from his military record.  

6.  On 3 July 1974, the Superior Court for the State of Alaska, convicted the applicant upon his plea of guilty to the charges of the sale of hallucinogenic, depressant and stimulant drug.  He was sentenced to 4 years in civil confinement.  

7.  On 1 August 1974, the unit commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation
635-206, due to a conviction by a civil court.  The requirements for a board of officers were waived. 

8.  On 19 August 1974, the Commanding General approved the recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-206, by reason of misconduct (civil conviction), with an undesirable discharge. 

9.  The separation document (DD Form 214) issued to the applicant upon his separation shows that on 4 September 1974, the applicant was discharged in pay grade E-1, with an Undesirable Discharge.  He had completed 3 years, 
9 months, and 2 days of creditable active service and 497 days of time lost.  He was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with 60 Device and the Vietnam Cross of Gallantry with Palm. 

10.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  

11.  The applicant’s Official Military Personnel File (OMPF) contains no medical records or does the applicant provide any medical documents that indicate he 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. 

12.  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 in evaluating the applicant at the time of his discharge.  

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to an honorable discharge because of the inconsistencies of his discharge and because of his long standing PTSD condition which impaired his ability to serve.  

2.  The evidence of record provides no indication that the applicant was ever treated for or suffered from a disqualifying 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 more than three decades 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 also reveals that the applicant had a record of disciplinary infractions prior to the civil conviction which ultimately led to his discharge.  Therefore, it is concluded that his discharge accurately reflects his overall record of service.  

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

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LDS__  ___SWF_  ___RSV_  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 for correction of the records of the individual concerned.





____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/25
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.