IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080001305 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to general or above.

2.  The applicant states, in effect, that he was suffering from severe psychiatric trauma due to combat in Vietnam and he still suffers from the effects of combat.

3.  In support of his request, the applicant submitted:  a copy of his DD Form 214, Armed Forces of the United States, Report of Transfer or Discharge; a copy of Special Orders Number 65, Headquarters, 101st Airborne Division, dated 5 March 1968, in which he was awarded the Combat Infantryman Badge; a copy of a two-page Psychosocial Assessment that was prepared on 23 August 2004, after he was evaluated on 9 August 2004, by Ability Management Associates, Howell, Michigan; a copy of his Global Assessment of Functioning (GAF) Scale, dated 9 August 2004; a copy of his evaluator’s curriculum vitae; a copy of a six-page letter from Dr. JB, MD (Retired); and a copy of a four-page Psychological Report  from a licensed psychologist, HF, PhD; and four buddy statements.

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.  The applicant’s Member of Congress prepared and submitted a letter to the Board.  In this letter, he asks that the applicant’s request and attached supporting evidence be reviewed and that the Board provide whatever assistance it can with regards the matter of his request for an upgrade of his discharge.  The MOC asks that he be kept informed of the Board’s findings.

3.  The evidence shows the applicant enlisted, on 20 January 1967, at the age of 17 years and 8 months, in the Regular Army with his parents’ consent.  He was a high school dropout who had completed the 10th grade before he enlisted in January 1967.  He had not been in school for approximately eight months.  The evidence shows he and his parents deceived recruiting officials in responding to critical and essential questions at the time of his enlistment.  To the question in Item 27 (Have you ever been arrested, charged, or held by Federal, State, or other law enforcement authorities for any violation of any Federal law, State law, county or municipal law, regulation or ordinance?), of the DD Form 4, Enlistment Record – Armed Forces of the United States, he responded in the negative.  To the question in Item 28 (Have you ever been convicted of a felony or any other offense, or adjudicated a youthful offender or juvenile delinquent?), of the DD Form 4, the applicant responded in the negative.  To the question in Item 29 (Have you ever been imprisoned under sentence of any court?), of the DD Form 4, the applicant responded in the negative.

4.  The applicant successfully completed basic combat training at Fort Leonard Wood, Missouri, and was assigned to Fort Gordon, Georgia, to undergo his advanced individual training as an 11B, Light Weapons Infantryman. 

5.  On 18 May 1967, while undergoing his advanced individual training, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for unlawfully striking another individual in the mouth with his M-14 Rifle.  The imposed punishment was a forfeiture of $45.00, restriction to the company area for 10 days, and to perform extra duties for 10 days.

6.  On 3 September 1967, the applicant was assigned to Company A, 1st Battalion, 506th Infantry, Fort Campbell, Kentucky, and on 6 December 1967, the applicant was reassigned to Vietnam with his unit.

7.  On 20 May 1967, the applicant was advanced to the rank and pay grade, Private, E-2.

8.  On 7 January 1968, the applicant was tried and found guilty by a special court-martial of absenting himself without proper authority on 17 November 1967 and remaining so absent until 19 November 1967 and of absenting himself without proper authority on 22 November 1967 and remaining so absent until 30 November 1967.  These violations of the UCMJ took place while the applicant was still at Fort Campbell with his unit.  On 7 January 1968, he was sentenced to be confined at hard labor for four months (to be suspended), to forfeit $69.00 per month for four months, and to be reduced to the rank and pay grade of Private, 
E-1.  The sentence was approved on 19 February 1968 and it was ordered executed.

9.  After being reduced to the rank and pay grade, Private E-1 on 19 February 1968, the applicant was once again advanced to the rank and pay grade, Private E-2, on 21 April 1968.  This would be the highest rank and pay grade the applicant would attain while he served on active duty.

10.  On 22 May 1968, the applicant received an Article 15, under the provisions of the UCMJ, for absenting himself without authority from his place of duty on 21 May 1968.  The imposed punishment was a forfeiture of $16.00 and restriction to the company area for 14 days.  The applicant did not appeal the punishment imposed.

11.  On 28 September 1968, the applicant was tried and found guilty by a special court-martial of absenting himself without proper authority on 8 September 1968 and remaining so absent until 17 September 1968.  He was sentenced to be confined at hard labor for six months (to be suspended for six months), to forfeit $51.00 per month for six months, and to be reduced to the rank and pay grade of Private, E-1.  The sentence was approved and ordered executed on 28 September 1968.

12.  On 13 January 1970, the applicant was tried and found guilty by a general court-martial, of signing, with the intent to deceive, an official document on 1 July 1968, on 1 and 2 May 1969, on 17 June 1969, on 7 July 1969, and on 5 August 1969; of escaping from lawful confinement on 3 November 1969; and of absenting himself without leave on 15 November 1968 and remaining so absent until 5 August 1969.  The applicant was sentenced to be dishonorably discharged, to be confined at hard labor for two years, to forfeit all pay and allowances, and to be reduced to the rank and pay grade of Private, E-1.  The sentence was adjudged on 13 January 1970 and was approved on 11 April 1970.

13.  On 13 March 1970, the applicant underwent a psychiatric examination in conjunction with an admission summary.  The examining psychiatrist, a medical corps psychiatrist, diagnosed him to have an immature personality, chronic, moderate, manifested by low tolerance to frustration, significant distortions of emotional origin in his perception of reality, and impairment of judgment under stress.  During the evaluation, the applicant was alert, oriented, and in contact.  It was felt there was some defensiveness in his attitude.  No significant disturbance in mood was detected.  His memory was recent and remote events appeared to be adequate.  His intelligence impressed the examining psychiatrist as being within average range.  No psychotic process was detected.  His insight was rather superficial and his judgment impressed the examining psychiatrist as being easily affected by emotional factors.

14.  In a DD Form 1478, Prisoner’s Admission Summary Data, dated 5 May 1970, in the section titled, Prior Offenses, is a summary of all offenses for which the applicant was charged.  This record shows that on 26 July 1966 in Ludington, Michigan, he was charged with speeding; reckless driving and UDAA (unlawfully driving away in an automobile).  The charge was amended to, “without intent to steal.”  For this offense, the applicant was fined a total of $42.00 and spent 20 days in county jail.  It appears he paid $7.60 in court costs.  This offense was not reported to recruiting personnel at the time of his enlistment.

15.  In the same DD Form 1478, the record shows that the applicant was arrested in Augusta, Georgia, on 30 May 1967, for assault with the intent to commit murder. These charges were dropped and the case against the applicant was dismissed at the request of the prosecutor on 27 June 1967.  This alleged offense was committed while the applicant was in basic combat training.

16.  On 10 June 1970, the applicant underwent a psychiatric examination in conjunction with a progress summary.  The examining psychiatrist, a medical corps psychiatrist, diagnosed him to have an immature personality, chronic, moderate.

17.  On 1 September 1970, the applicant underwent a psychiatric diagnosis to determine if he should be granted restoration, clemency, or parole.  The examining psychiatrist diagnosed the applicant to have an immature personality, chronic, moderate.  The examining psychiatrist was impressed that the applicant’s intelligence was within average range.

18.  On 3 November 1970, the US Army Court of Military Review found the approved findings of guilty and the sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, affirmed the sentence.

19.  On 27 January 1971, the US Army Disciplinary Barracks, Fort Leavenworth, Kansas, prepared and distributed General Court-Martial Order Number 108 announcing that Article 71(c) having been complied with, the sentence was ordered duly executed.  The applicant was confined in the US Army Disciplinary Barracks, Fort Leavenworth.

20.  On 1 February 1971, the applicant was examined by a medical corps psychiatrist in conjunction with a progress summary.  In the interview, the applicant was alert, oriented, in contact, and his attitude was cooperative.  The applicant’s diagnosis was unchanged.  He was still considered to have an immature personality, chronic, moderate.

21.  The applicant was discharged from the Army in the rank and pay grade, Private, E-1, pursuant to the sentence of a general court-martial and the provisions of AR 635-200, paragraph 11-1b, on 22 February 1971.  He was issued a bad conduct discharge.  By the date of his discharge, he had served 2 years and 28 days active Federal service, with 336 days lost before his normal expiration of term of service and 399 days lost subsequent to his normal expiration of term of service.

22.  On 29 March 1971, as a result of consideration of the applicant’s case, the Secretary of the Army, through the Army Clemency and Parole Board, announced that the applicant was to be released from confinement on parole but he was denied clemency.  The Secretary of the Army directed the substitution of a bad conduct discharge for the unexecuted dishonorable discharge.

23.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review was required to have been completed and the affirmed sentence ordered duly executed.

24.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

25.  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 separation specifically allows such characterization.

26.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

27.  In his letter of support, KGB stated he remembered the applicant from his service in Vietnam.  When they met, he did not have a good feeling about the applicant - they had words or something of that nature, but his opinion changed when he witnessed the applicant in action against the enemy.  KGB’s comments centered largely on the events that they endured together, with other platoon personnel, on 5 March 1968 when they were ambushed by the Viet Cong.  KGB stated in his letter he recommended the applicant for an award for actions that affected many people and probably saved some lives in the action on that day; however, he was declared ineligible to receive the award for reasons that were not known to him.  Apparently, they lost touch in Vietnam because KGB did not know what had happened to the applicant and the troubles he had faced while there and the final outcomes.  KGB summarized his letter by stating that the applicant was a good trooper and his actions under fire deserved to be recognized.  KGB, in his letter made no mention of an upgrade of discharge for the applicant.

28.  In his letter of support, MJO reflected on their assignment to Vietnam and how their division had transported 20,000 troops there in two weeks time.  He describes how that they encountered little action for the period December 1967 through February 1968; however, March 1968 was considerably different – especially 5 March 1968.  He continued by describing the events of 5 March 1968 and what he remembered of the actions they encountered against an aggressive enemy.  He was severely wounded and this required him to be medically evacuated out of the country and back to the United States.  He states that what the applicant did on that day was more than his job; he fought aggressively against a determined enemy and helped the wounded without any regard for his own well being.  He summarized by saying, the applicant is a credit to every fighting man who has ever taken up arms for his country.

29.  Although MJO was not in Vietnam and was not aware of the applicant’s post-5 March 1968 actions that led to his being incarcerated and receiving a bad conduct discharge, he claims to have been made aware of his history.  There are many vets, he adds, who when they were exposed to heavy combat developed behaviors that seemed to have a profound negative effect on how they dealt with life in everyday situations.  He feels that the applicant was wounded on 5 March 1968 though not in a physical sense.  He asks one to look at his life after 5 March 1968.  It just screams PTSD (posttraumatic stress disorder) at you.  At the time he needed treatment, instead he got incarcerated.  He summarizes by stating that had PTSD been recognized at the time of his general court-martial, it could have been used as a defense.  He cannot seek medical treatment at a VA (Department of Veterans Affairs) hospital unless his discharge is upgraded to a general discharge.  He concludes by saying that veterans benefits are for those who served.  The applicant did more than serve.  He fought in a savage war, the longest and most divisive in our nation’s history.  The Board, he states has an opportunity to right one of the many wrongs of that war.

30.  In his letter of support BP acknowledges that he is neither a psychologist nor a psychiatrist but describes the applicant as an individual who very early on in his tour of duty in Vietnam was already showing sign of PTSD.  Two weeks after their arrival in Vietnam, he and others, including the applicant, witnessed a helicopter being shot down and all on board being burned to death.  The applicant took it particularly hard since two of his greatest protectors were on board the flight.

31.  BP then describes the events of the day on which they were ambushed and the applicant’s heroic actions.  He was not recognized for his heroism because he was considered as the “dud” by their commander.  He had been considered such even before their departure from Fort Campbell.  BP claims that the applicant “was used” by command because he was big and strong.  Big and strong meant you carried, in addition to your ruck sack, the M-60 Machinegun and ammunition, and a 30-pound PRC-25 radio.  Big and strong meant you were a pack mule, carrying extra Claymore mines, extra boxes of machinegun ammunition, extra smoke grenades, and creature comforts for when the officers went out with them.

32.  BP alleges he saw the applicant exhibit more and more obvious signs of becoming detached from reality yet the brass would not stop using him for amusement.  He would self-medicate to escape from the psychological trauma he had endured for so long.  Apparently he was not around to witness or to be aware of the applicant’s difficulties which led to his incarceration and bad conduct discharge, he was both surprised and saddened to learn what had happened to him.  He concludes by stating that if ever there was a cause to fight for, getting the applicant an upgrade of his discharge so he can access the VA health care system is a priority.  

33.  In addition to his letter of support, BP added an enclosure in which he describes his observations of the applicant’s heroic actions on 5 March 1968, in memory of their nine fallen brothers and in his quest for justice for the applicant.

34.  In his statement of support, DGH describes his own experiences in combat in Vietnam which have left him diagnosed with PTSD.  He claims his difficulties began after he returned to the States, but it is apparent to him that his friend broke and experienced his sooner – after just 10 months in Vietnam.  They did what their government asked them to do and now it is time for the Government to do theirs.  He asks that the applicant’s discharge be upgraded so that he can get the medical treatment he needs.  He summarizes by stating, in effect, that the applicant has already paid the price for the treatment he deserves.

35.  The applicant underwent a psychosocial assessment on 9 August 2004.  The purpose of this assessment was to evaluate his current psychosocial functioning and employability.  At the time of the assessment, the applicant was also being evaluated for PTSD.  After the assessment, the psychologist summarized and opined that the applicant suffered from PTSD related to his Vietnam experiences.  He allegedly was involved in numerous firefights and traumas which were clearly outlined in the stressor statements.  It was her professional opinion that the applicant used drugs and alcohol to self medicate the detrimental effects of his traumatic experiences.  She supported the elimination of his bad conduct discharge and asked that it be considered a result of PTSD as opposed to willful misconduct.

36.  The applicant was interviewed by a licensed psychologist on 4 August 2007.  After this interview, he completed a report of his findings on 24 September 2007 on the causal relationship between the applicant's combat stress and his misconduct and in his summary, he opined that it was his professional opinion that the applicant was suffering from PTSD before he engaged in the misconduct for which he received a bad conduct discharge.  His severe PTSD symptoms were compelling circumstances that necessitated his prolonged absence without leave and then caused his concomitant misconduct of drug use and schemes to pay for the drugs while living in a war zone.  Smoking and injecting opium were attempts to lessen the severity of the symptoms.  His going absent without leave was wrapped up in his attempt to avoid the exacerbation of his symptoms that would have occurred had he returned to combat.
37.  The applicant was seen by a psychiatrist on 21 and 22 July 2007 to determine if he was disabled, secondary to service-connected disability, namely PTSD.  After having examined the applicant’s military history, the symptoms of PTSD, the post-service psychiatric treatment he had received, his other past medical history, his family history, his educational history, his employment history, his marital history, his criminal and substance abuse history, his mental status, he diagnosed the applicant to have post traumatic stress disorder, chronic, severe, polysubstance abuse, in remission, by history, chronic cannabis dependence, secondary to PTSD. He summarized by commenting that "Clearly, military command is partly culpable for the applicant’s lifelong adjustment difficulties.  The command structure administering his application to remain in Vietnam in 1968, but transfer units and duties, should have been examined and considered.  At the very least, he should have been allowed reassignment in country.  Why?  The evidence indicates he did not feel be belonged in the 101st Airborne, was alienated and not respected by officers or NCOs, except by the man whose life he could not save.  He was then an impulsive, insecure 18 year old.  This is not a sophisticate man, but he was emotionally sensitive to his impression on and acceptance by others.  When a Soldier asks for extension in a combat area, there is usually a reason.  Apparently no one asked.  The military failed to provide any treatment or intervention for substance abuse.  Opioids use was epidemic in Vietnam in 1968.  There is flat out no excuse for this dereliction of command by the military."  He concludes by stating he would recommend, at the very least, that the applicant’s discharge be upgraded and he be granted disability benefits he has coming to him.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence shows that the applicant was an unsettled individual before he enlisted in the Army.  He used deception, and was aided in gaining entrance into the Army by his parents.  In his general court-martial there is evidence (i.e., the signing of false official documents) that this conduct continued.

3.  The applicant, according to an examining psychiatrist and psychologists was suffering from the effects of PTSD; however, these assessments/evaluations took place in 2004 and in 2007, more than 36 years after he was discharged from the Army.

4.  The evidence shows that the applicant was subjected to psychological examinations on entrance into the disciplinary barracks and while he was confined there by military authority.  In the examination which he underwent on 13 March 1970, the examining psychiatrist diagnosed him to have an immature personality, chronic, moderate, manifested by low tolerance to frustration, significant distortions of emotional origin in his perception of reality, and impairment of judgment under stress.  During the evaluation, the applicant was alert, oriented, and in contact.  It was felt there was some defensiveness in his attitude.  No significant disturbance in mood was detected.  His memory was recent and remote events appeared to be adequate.  His intelligence impressed the examining psychiatrist as being within average range.  No psychotic process was detected.  His insight was rather superficial and his judgment impressed the examining psychiatrist as being easily affected by emotional factors.

5.  In the psychiatric examinations that were conducted - on 5 May 1970, 10 June 1970, 1 September 1970, and on 1 February 1971 - Army psychiatrists consistently arrived at the same conclusion.  The applicant had an immature personality, chronic, moderate.  There is no indication the applicant was experiencing a psychotic process or that one was detected.

6. The evidence shows the applicant's conviction and discharge were effected in accordance with applicable law and regulation.

7.  The applicant’s sentence was reviewed by the US Army Court of Military Review and was found to be correct in law and fact and this having been determined on the basis of the entire record, the US Army Court of Military Review affirmed the sentence.  The applicant’s sentence of his discharge with a bad conduct discharge was ordered executed and he was so discharged on 22 February 1971.

8.  The applicant provided no evidence to show that his discharge was unjust and he has also not provided evidence sufficient to mitigate the character of his discharge.

9.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

10.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his bad conduct discharge to a general (under honorable conditions), or higher discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.




 _   _______x   ______________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001305



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080001305



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1