IN THE CASE OF:	

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080006207 


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 that “the diagnosis of sociopathic personality with passive aggressive features be expunged and that the more appropriate and verified over time diagnosis of Post Traumatic Stress Disorder (PTSD) be applied along with the necessary medical/honorable discharge.”

2.  The applicant states that:

	a.  it is his opinion that after years of shame, guilt, suicidal ideation, self-medication, social alienation, addiction, incarceration, and ongoing depression, that the record of the Department of Veterans Affairs (DVA) clearly shows and suggests that the sociopathic diagnosis of 1967 was incorrect and should be altered to show a more appropriate PTSD disorder or combat neurosis or shell shock, due to severe trauma during combat in Vietnam;

	b.  he was devastated by his experience in the Republic of Vietnam , specifically during the “Battle of la Drang.”  In battle, something happened to him that was called PTSD.  He was diagnosed incorrectly as a sociopathic personality with passive aggressive features.  However, had his combat duty been in Kosovo, Afghanistan, or Iraq, he would have been correctly diagnosed; and

	c.  the Army, the DVA, and the United States of America failed him as a war hero.  This failure resulted in 40 years of pain, fear, and suffering, and the use of drugs to escape his condition.  However, his strong will coupled with help from the DVA and the Bureau of prisons mental health professionals, allowed him to make improvements.  It is now up to the Army to correct the wrong and grant him a medical/honorable discharge.  

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Undated Self-authored statement. 

	b.  DD Form 4 (Enlistment Record-Armed Forces of the United States), dated 23 September 1964.

	c.  Pages 1 and 2 of his 4-page DA Form 20 (Enlisted Qualification Record).

	d.  Mental Hygiene Findings, Diagnosis, and Recommendations, dated 28 May 1965.

	e.  Memorandum, dated 3 November 1965, Authorization for a Foreign Award.

	f.  General Orders Number 2300, dated 8 July 196, award of the Bronze Star Medal with “V” Device.

	g.  General Orders Number 40, dated 21 September 1967, award of the Presidential Unit Citation.

	h.  Personal letter, dated 10 January 1966, addressed to whom it may concern.

	i.  Miscellaneous medical reports, records, and examinations, dated on miscellaneous dates.

	j.  Immediate commander’s recommendation for elimination memorandum, dated 14 June 1967.

	k.  Letter, dated 28 April 1970, from the Los Angeles, California, Regional Office of the DVA.

	l.  DVA Medical Evaluation, dated on miscellaneous dates in August 1999.

	m.  An undated letter from a psychology services coordinator to the applicant regarding his PTSD.

	n.  DVA letter, dated 17 March 2005, regarding the applicant’s records.
	o.  A copy of a photograph of two individuals.

	p.  A listing of Soldiers’ names and other administrative data. 

	q.  Undated character reference letter.

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 records show he enlisted in the Regular Army for a period of 3 years on 23 September 1964.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons infantry).  The highest rank he attained during his military service as private first class (PFC)/E-3.

3.  On 28 May 1965, while assigned to Fort Benning, Georgia, and prior to his service in the Republic of Vietnam, the applicant underwent a mental evaluation by the 2nd Infantry Division psychiatrist.  The psychiatrist diagnosed the applicant with a chronic, severe, and immature personality, impaired judgment, and inability to adapt to military life.  The psychiatrist added that the applicant’s condition represented a basic character and behavior disorder that was not amenable to hospitalization, treatment in a military setting, disciplinary action, or training or reclassification. The psychiatrist recommended the applicant be separated from the Army for unsuitability as expeditiously as possible. 

4.  The applicant's records show he served in the Republic of Vietnam from 16 August 1965 to 30 June 1966.  His awards and decorations include the Combat Infantryman Badge, the Bronze Star Medal with “V” Device, the Vietnam Service Medal, one Overseas Service Bar, and the Republic of Vietnam Gallantry Cross with one gold star.


5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 25 May 1965, for being absent without leave (AWOL) during the period on or about 5 May 1965 through on or about 8 May 1965, and breaking restriction, on or about 15 May 1965. His punishment consisted of 45 days of restriction and forfeiture of $41.00 pay for one month;

	b.  On 11 June 1965, for failing to go at the time prescribed to his appointed place of duty, on or about 9 June 1965.  His punishment consisted of forfeiture of $19.00 pay for one month; and 

	c.  On 10 January 1967, for being AWOL during the period on or about 27 December 1966 through on or about 28 December 1966.  His punishment consisted of forfeiture of $10.00 pay for one month.

6.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows multiple entries of AWOL from 14 April 1965 to 17 April 1965, 3 May 1965 to 4 May 1965, 5 May 1965 to 6 May 1965, and on 27 December 1965.  

7.  On 25 April 1967, the applicant was observed sniffing glue in a latrine on Fort Dix, New Jersey.  A physician examined him and stated that due to the strong aroma of glue and the applicant’s drunkenness, he demonstrated the physical and central nervous system signs of glue sniffing.  He was subsequently sent to the psychiatric clinic for evaluation.  The results of his psychiatric test revealed that he was mentally sound at the time of the examination and did not wish to make a statement.

8.  On 2 May 1967, the applicant underwent a neuropsychiatric examination at Walson Army Hospital, Fort Dix, New Jersey.  The military psychiatrist diagnosed the applicant with a sociopathic personality with passive aggressive features.  He further remarked that the applicant was mentally sound and was able to distinguish right from wrong and adhere to the right.  He had no mental disease to warrant disposition through medical channels.  The military psychiatrists further stated that the applicant’s character was consistent with his life history and behavior.  He had proved to be irresponsible in his duty performance and exhibited an erratic behavior when he inhaled airplane glue.  His attitude towards the military was hostile and he candidly indicated his intention not to perform further and his wish for separation.  The military psychiatrist concluded that retention would have resulted in further ineffectiveness and possibly further abuse of drugs, and recommended the application’s separation.  
9.  On 14 June 1967, by memorandum, the applicant’s immediate commander notified the applicant that he was being recommended for separation from the Army under the provisions of paragraph 6b(2) of Army Regulation (AR) 635-212 (Personnel Separations) for unsuitability/mental instability.  The applicant acknowledged this notification on the same date.

10.  On 19 June 1967, the applicant consulted with counsel and acknowledged notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if an undesirable discharge was issued to him, that discharge would be under conditions other than honorable and that as a result of such discharge, he could be deprived of many or all his rights as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life.  

11.  On 19 June 1967, the applicant’s immediate commander initiated separation action against the applicant in accordance with AR 635-212, for unsuitability.  The immediate commander remarked that the applicant had a history of irresponsible and immature behavior and had, on numerous occasions, rendered himself unfit for duty, through the inhalation of model airplane glue.  The immediate commander also stated that despite recurring counseling, the applicant’s service had been characterized by repeated infractions of the UCMJ culminating in Court-Martial charges.  When told of the charges against him, his behavior became so uncooperative and unmanageable, that he was placed in pre-trial confinement.  He was unsuitable for military service.  

12.  On 19 June 1967, the separation authority approved the applicant's discharge for unsuitability under the provisions of paragraph 6b(2) of AR 635-212, and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 August 1967.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed 2 years, 10 months, and 17 days of creditable active military service and had 9 days of lost time due to AWOL.  

13.  In his undated self-authored statement, the applicant gives an overview of his entry into the Army.  He further describes his experience in Vietnam and exposure to various combat situations.  He also describes his drunkenness and carelessness upon return from Vietnam.  He concludes by apologizing for his behavior and stating that he knows the roots of his alienation/social absence and that he is, in effect, working on vigorously minimizing and/or eliminating those reasons.

14.  On 28 April 1970, by letter, the DVA notified the applicant that his drug condition was his own making and that there was no record of a nervous condition that he claimed.  Additionally, he was advised that his personality condition was not a disease or an injury. 

15.  On 7 August 1988, the applicant underwent a psychological/mental evaluation at a VA facility.  The report shows that the applicant was diagnosed with depressive and anxious symptoms, related to PTSD.

16.  In an undated character reference letter, a friend of the applicant states that he served with him in Vietnam and experienced combat first hand.  He also adds that the applicant was well liked and respected for his hard work and honesty. However, the horrific encounters with death and the dying that he endured changed him forever.  

17.  There is no indication in the available record which shows he applied to the Army Discharge Review Board (ADRB) within that board’s 15-year statute of limitations. 

18.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

19.  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.  .



DISCUSSION AND CONCLUSIONS:

1.  With respect to the discharge upgrade to honorable, the applicant’s entire record of service was considered and his service in Vietnam and his valor in combat were noted.  However, there is no evidence in the available records and the applicant did not provide any evidence showing he suffered from PTSD or that his acts of indiscipline were the result of PTSD.  

2.  The evidence of record shows the applicant had a pattern of misconduct as evidenced by his 3 instances of Article 15 and multiples instances of AWOL.  Furthermore, the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

3.  With respect to the applicant’s medical discharge, there is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he was issued a permanent medical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).  The Army must find that a Soldier is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.  

4.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  The DVA evaluates veterans throughout their lifetime, granting or adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

5.  With respect to expunging the applicant’s mental diagnosis and replacing it with a “more appropriate and verified PTSD diagnosis,” it is presumed that the military psychiatrist diagnosed the applicant properly and documented his evaluation, diagnosis, and recommendation in accordance with applicable regulations at the time.  There is no evidence in the available record and the applicant did not submit any evidence that shows his diagnosis by a military psychiatrist was not conducted to standard or that it should be removed from his records. 


6.  The reason for the applicant’s discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general discharge to fully honorable.

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)                                         AR20080006207





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ABCMR Record of Proceedings (cont)                                         AR20080006207



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