,
		IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080005934 


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, reconsideration of an earlier appeal that his undesirable discharge be upgraded to an honorable discharge.  As a new issue, he also requests a medical discharge for his Post Traumatic-Stress Disorder (PTSD).

2.  The applicant states that he filed his Veterans Affairs (VA) claim for compensation on 15 April 1971.  He was within 3 years of discovery of an alleged error or injustice and the 15-year statute of limitation.  He further states in part "Under Title 38 of the Veterans Benefits section 5303 (B), if it is established at the time of discharge, and court marshal (sic), or resignation, that the person was insane such person shall not be precluded from VA benefits under the laws administered by the VA, based upon the period of service from which such person was separated."  

3.  The applicant states that he never consulted with counsel during his separation proceedings and was never given a military court-martial.  His service medical records of his attempted suicide, the diagnosed PTSD from combat service with the VA medical records, and his psychiatric evaluation during his discharge proceedings should have been made available to the previous Board.  

4.  The applicant provides a VA Form 07-3101 (Request for Information), dated 20 July 1971; a DA Form 664 (Serviceman's Statement Concerning Application for Compensation from the Veterans Administration), dated 15 April 1971; a 
6-page letter from the Law Offices of J___ M. W____, Jr. to the VA, dated 
12 May 2005; a 2-page medical summary, dated 17 July 2004; a Standard Form (SF) 509 (Progress Notes), dated 31 August 1990; a Sworn Statement from the applicant, dated 10 May 2005; a DD Form 1584 (National Agency Check Request), dated 7 June 1968; an SF 88 (Report of Medical Examination), dated   23 February 1971; an SF 89 (Report of Medical History), dated 23 February 1971; an SF 502 (Narrative Summary), dated 5 November 1970; a Physician's Statement addressed to the U.S. Postal Service, Support Division, dated           17 December 1990; a copy of an Army Commendation Medal citation; Headquarters, Americal Division General Orders Number 328, dated 9 January 1970; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with the period ending 11 February 1970; and two VA Forms 3288 (Request for and Consent to Release of Information from Claimant's Records).

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 AR20070013696, on 7 February 2008.

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 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.

3.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, the evidence provided is not new evidence; however, it was not explicitly reviewed by the previously Board but will be considered by this Board. 

4.  The applicant was inducted in the Army on 28 May 1968 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 94B (Cook).  


5.  The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Company, 1st Battalion, 52nd Infantry, 98th Infantry Brigade on 
11 February 1969.  He departed Vietnam on 8 February 1970.  On 11 February 1970, he was honorably released from active duty in the rank of Specialist Four/E-4 after completing 1 year, 8 months, and 14 days of creditable active service.

6.  The applicant enlisted in the Regular Army on 5 August 1970.  He arrived in Vietnam and was assigned to the 442nd Transportation Company and performed duties as a heavy truck driver.

7.  On 17 October 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of not being at his appointed place of duty.  
  
8.  An SF 502, dated 5 November 1970, shows that the applicant was admitted to the 483rd U.S. Air Force Hospital after taking quantities of medication in an attempted suicide.  The military physician diagnosed the applicant with depressive reaction moderate, predisposition moderate, and stress severe.  The military physician stated in the narrative that the applicant began using drugs at the age of 14 by taking marijuana, glue, amphetamines, and barbiturates "when ever (sic) he could get them" which was usually about once a week.  He was drafted and began using heroin while in Vietnam.  He was discharged and went home to find his girlfriend married and his friends gone.  The military physician further stated that the applicant returned to the service and volunteered for Vietnam where he returned to taking heroin.  

9.  The military physician continued that the applicant's mental status showed no sign of psychosis or a thought disorder and that he had no insight and had poor judgment.  The applicant stated that he did not know why he did what he did, such as returning to the Army, returning to Vietnam, and attempting suicide.  After 5 days of hospitalization, the applicant was returned to duty.

10.  On 13 November 1970, the applicant accepted NJP under Article 15, UCMJ for two specifications of not being at his appointed place of duty.  

11.  On 5 December 1970, the applicant accepted NJP under Article 15, UCMJ for two specification of willfully disobeying a lawful order from a superior noncommissioned (NCO) and for not being at his appointed place of duty.


12.  On 19 February 1971, the applicant accepted NJP under Article 15, UCMJ for operating a military vehicle in a reckless manner.  His punishment consisted of forfeiture of $30.00 per month for one month and five days extra duty.

13.  On 24 February 1971, the applicant accepted NJP under Article 15, UCMJ for not being at his appointed place of duty

14.  The applicant's separation psychiatric evaluation is not available.

15.  The applicant's commander initiated a request to discharge the applicant for unfitness under the provisions of Army Regulation 635-212 (Discharge Unfitness and Unsuitability).  

16.  An SF 88, dated 23 February 1971, shows that the applicant was separating and had no disqualifying mental disease or condition.  It was noted that he had depression – suicidal tendencies, high frequency hearing loss to left ear, and an unstable left knee.

17.  An SF 89, dated 23 February 1971, shows that the applicant was being separated.  He stated that it was hard for him to cope with large numbers of people in school, he was admitted to the hospital for attempted suicide, and that he applied for disability with the VA for his left ear and knee.

18.  On 28 February 1971, the applicant consulted with counsel.  He was advised of his rights and the effect of a waiver of those rights.  The applicant was also advised of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel, that he waived consideration of his case by a board of officers, that he did not provide statements on his own behalf, and that he waived representation by military counsel.

19.  The applicant also indicated that he was aware that as a result of the issuance of an undesirable discharge he may be ineligible for any or all benefits as a veteran under both Federal and state laws, and that he may expect to encounter substantial prejudice in civilian life based on an undesirable discharge.

20.  On 9 March 1971, the applicant's commander recommended the applicant be separated for unfitness based on frequent incidents of a discreditable nature with military authorities under the provisions of paragraph 6a of Army Regulation 635-212.  


21.  On 12 March 1971, the appropriate authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  On 
15 April 1971, he was discharged with an undesirable discharge and a characterization of service of under other than honorable conditions after completing 8 months and 11 days of creditable active service this period.

22.  The applicant provides an SF 509, dated 31 August 1990.  The medical document shows that the applicant received a mental health reevaluation by a psychologist.  He previously received an assessment of tension, controlled anger, and possible PTSD.  The applicant's main complaint was that he could not sleep, stress at work, and (reliving) his Vietnam experiences while delivering meals to combat units.  He admitted being under fire while in Vietnam.  The applicant stated that he had bad dreams, intrusive memories, and admitted that anything in general reminded him of it.  

23.  The applicant provided a Physician's Statement addressed to the U.S. Postal Service, Support Division, dated 17 December 1990.  The applicant was evaluated and diagnosed with a delusional (paranoid) disorder by a psychiatrist in reference to conflict on the job.  The psychiatrist noted that after careful review of recent psychological testing and interview of the applicant, it was his opinion the applicant was grossly psychotic and in need of hospitalization.  He recommended that the applicant continue with his medication and have individual psychotherapy and determined that he was totally disabled, unable to function for the U.S. Postal Service as an employee.

24.  The applicant provides a 2-page medical summary, dated 17 July 2004.  The document shows that he was diagnosed with PTSD, chronic.  The document further indicated his mental status as "…pleasant, cooperative; talks in clear, coherent logical ways showing above average intelligence, no loose associations or delusions, no suicidal ideation; shows insight into problems; not in acute distress nor in need of hospitalization."  

25.  The applicant provided a self-authored statement, dated 10 May 2005.  The applicant stated that he was drafted in the Army and was ordered to Vietnam.  From there he was ordered to a base camp were he served as a cook delivering meals to combat troops by chopper and was often under fire.  He remembered seeing three Viet Cong in the wire and Soldiers opened up on them, killing all three.  The next day, he saw the three mutilated bodies and today it is still in his memories.  He left Vietnam and reentered the Army and came back to Vietnam.  His nightmares and depression were severe and he starting drinking and doing heroin for self medication.  After withdrawing from heroin, he became suicidal and attempted to commit suicide.

26.  The applicant further stated that in February 1971 he was discharged from the Army.  He still sufferers from PTSD, depression, and nightmares.  There was no history of drug use going into the service and that the only time he used heroin was on his second tour in Vietnam for self-medication and it was not for 
willful conduct.  In 1971, he filed for disability but the VA's mistakable error was never adjudicating the mental disorder due to traumatic stress.  From 1971 to 1980, with no treatment from the VA, he drank heavily for self-medication.  His PTSD, depression, and severe stress became worse after he stopped drinking in 1980.  In 1983, he went to work at the Postal Service and in 1990 he was put on full disability for paranoid schizophrenia.  Today the VA is treating him for PTSD and mental disorder.

27.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.

28.  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.  

29.  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.

30.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted Soldier may 

not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  An exception may be made by the general court-martial convening authority if the disability is the cause, or a 
substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.  Evidence of record show the applicant received five Article 15s that led to his separation for unfitness.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge or general discharge.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  The applicant contends that he filed a VA claim for compensation on 15 April 1971, and that his previous case was within the ABCMR's 3-years of discovery
of an alleged error or injustice rule and the [Army Discharge Review Board’s]
15-year statute of limitation.  The applicant's VA disability claim that he submitted in 1971 has no bearing on the timely submission of an application to the ABCMR. VA claims are not governed by the ABCMR's or the Army Discharge Review Board’s statutory guidelines.  

4.  The applicant contends that during his discharge proceedings he never consulted with counsel and he was never given a court-martial.  It is true the applicant was never court-martialed; he was administratively separated.  However, there is no evidence in the applicant's service records and the applicant has provided no evidence that supports this contention that he never consulted with counsel.  Records show that he waived his rights and competent counsel properly advised him.  He also acknowledged that he fully understood his rights.

5.  The applicant contends that his service medical records of his attempted suicide, his diagnosed PTSD from combat service with his VA medical records, and the psychiatric evaluation he underwent during his discharge proceedings should have been available.  Except for the psychiatric evaluation, which is not in his records, these documents have now been reviewed by the Board.

6.  Although the medical documents provided by the applicant show that he was treated for attempted suicide and was diagnosed at that time with depressive reaction, there is no evidence in the available records that shows that his condition was the cause of his acts of indiscipline.  There is no medical evidence of record that shows he had any mental or medical condition prior to his discharge that would have rendered him eligible for physical disability processing.  In addition, the military physician stated in the 5 November 
1970 narrative that the applicant began using drugs at the age of 14 by taking marijuana, glue, amphetamines, and barbiturates whenever he could get them.

7.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  

8.  In addition, Army Regulation 635-40, paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  As noted above, there is no evidence of record to show that the applicant had any medical condition that caused his acts of indiscipline; therefore, it appears he was not eligible for physical disability processing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Regarding the applicant's request for reconsideration of an earlier appeal that his undesirable discharge be upgraded to an honorable discharge, 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 AR20070013696, dated 7 February 2008.
2.  Regarding the applicant's request for a medical discharge, 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.



      _________xxxxx________
               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)                                         AR20080005934



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ABCMR Record of Proceedings (cont)                                         AR20080005934



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