IN THE CASE OF:	  

		BOARD DATE:	       12 March 2009

		DOCKET NUMBER:  AR20080018018 


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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD); his rank be changed from private first class (PFC)/E-3 to specialist four (SP4)/E-4; and to have his record show he was seriously wounded.

2.  The applicant states, in effect, that when he returned from the Republic of Vietnam (RVN) he had been wounded by a landmine and in need of help with Post Traumatic Stress Disorder (PTSD).  He also states in effect, that not much was known about PTSD then and if he could have received help he would not have done what he did.  He states that prior to this his record was without blemish.  He continues to state, in effect, that he was not mentally stable and he could not settle back into Army life without medical help.  He concludes by stating, in effect, that he just wants his records changed; no back money or anything else.  

3.  The applicant provides a copy of a memorandum he received from the Disabled American Veterans, National Service Office in St. Louis, MO, dated
13 August 1998.

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 record shows that he was inducted into the Army of the United States and entered active duty on 31 January 1968.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) confirms, in Item 33 (Appointments and Reductions), that he was promoted to SP4 on 7 October 1968 and that this is the highest rank he attained while serving on active duty.  

4.  Item 31 (Foreign Service) of the applicant's DA Form 20  shows he served in the RVN from 6 July 1968 through 13 February 1969.

5.  The applicant's record contains a copy of a Western Union Telefax to his parents dated 30 January 1969, which reads, "… your son (the applicant) was slightly wounded in Vietnam on 30 Jan 69 as a result of hostile action.  He received fragment wounds to both legs, both arms, and groin while on a combat mission when hit by fragments from a hostile bobby trap.  He was treated (and hospitalized in Vietnam).  Address mail to him at the Hospital Mail Section, APO SF 96381.  Since he is not repeat not seriously wounded no other reports will be furnished." 

6.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  On 24 June 1970, the applicant accepted NJP for failure to go at the time prescribed to his appointed place of duty on 20 June 1970.  His punishment for this offense included a forfeiture of $30.00 pay for 1 month and reduction to the grade of private
(PV2)/E-2, suspended for a period of 60 days.  

7.  On 8 May 1970, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 1 July 1969 to 8 April 1970.  The resultant sentence was reduction to PFC/E-3 and restriction to the limits of the installation for 2 months.
8.  On 21 December 1970, the applicant’s unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), based on his record of AWOLs.

9.  On 23 December 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The applicant indicated that he would not be submitting a statement in his behalf.

10.  On 28 December 1970, the applicant underwent a psychiatric evaluation at Mental Hygiene Consultation Service, Fort Leonard Wood.  The examining psychiatrist diagnosed the applicant with an immature personality disorder, severe and cleared him for any administrative decision deemed appropriate by the command.  

11.  On 12 January 1971, the unit commander recommended the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability.  The commander stated that this was based on the severe nature of the applicant's psychiatric report, his intentional absences without proper authority, his excessive time lost in the service, and a character and behavior disorder resulting in his failure to adjust to military service.  

12.  On 14 January 1971, the separation authority approved the applicant’s discharge for unsuitability and directed that the applicant receive a GD.  On 
25 January 1971, the applicant was discharged accordingly.  

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant confirms that he was separated with a GD on 25 January 1971.  At the time of his discharge, he held the rank of PFC and had completed a total of 1 year, 9 months, and 14 days of creditable active military service.  This document further shows that the authority for his separation was Army Regulation 635-212 and the reason for separation was unsuitability.  Based on the authority and reason for his discharge, the applicant was assigned a Separation Program Number (SPN) of 264, which reflected a character and behavior disorder separation.  

14.  Item 24 (Decoration, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 show he was awarded the Sharpshooter Badge with Rifle Bar, the National Defense Service Medal, the Vietnam Service Medal with 2 bronze service stars, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with "60" Device, and one Overseas Service Bar.
15.  The applicant's record contains a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge From Active Duty) dated 20 February 2008, which corrected item 24 of his DD Form 214 dated 25 January 1971, to delete the Vietnam Service Medal with two bronze service stars and added the Purple Heart, the Republic of Vietnam  Gallantry Cross with Palm Unit Citation, the Vietnam Service Medal with 3 bronze service stars.

16.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his discharge within its 15-year statute of limitations.

17.  The applicant submitted a copy of a memorandum he received from the Disabled American Veterans, National Service Office, St. Louis, dated 13 August 1998, which was in reference to the rating decision made by the St. Louis VA (Department of Veterans Affairs) Regional Office.  

18.  Army Regulation 635-212, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, character and behavior disorder, apathy, enuresis and alcoholism.  Members separated under this authority could receive either an HD or GD.

19.  Army Regulation 635-5-1 (Separation Codes), in effect at the time of the applicant’s discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  The SPN code of 264 was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-212, by reason of character and behavior disorder.

20.  On 23 November 1972, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was published and became the governing regulation for all administrative separations of enlisted personnel, which included the categories of separations previously governed by Army Regulation 635-212.  Department of the Army (DA) message, date/time group 302221Z March 1976, changed “character and behavior disorder” to “personality disorder” and Army Regulation 635-200 was revised on 1 December 1976.

21.  A Department of the Army Memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

22.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, established uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, U.S. Code, section 1553, and this guidance applies to the Office of the Secretary of Defense and all the Military Departments.

23.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides, in pertinent part, when separation is because of a personality disorder, the service of a Soldier separated per this paragraph will be characterized as honorable unless an entry level separation is required under chapter 3, section III.  A characterization of service of under honorable conditions may only be awarded to a Soldier separating under these provisions if they had been convicted of an offense by a general court-martial or convicted by more than one special court-martial during the current enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-212, by reason of unsuitability (character and behavior disorder).  It further shows that his separation processing was accomplished in accordance with the applicable regulation at the time and his discharge accurately reflected his overall record of service.  

2.  However, under current regulations, members separated by reason of personality disorder (character and behavior disorder) must be issued an HD unless they have been convicted by a general court-martial or have more than one special court-martial.  Given the applicant’s disciplinary record does not support a GD, his discharge is too harsh under current standards. Therefore, it would be appropriate to upgrade his discharge to an HD in the interest of equity.

3.  The applicant’s contention that his separation document should be corrected to reflect his rank as SP4 was also carefully considered.  However, there is insufficient evidence to support granting this requested relief.  The applicant’s record confirms he was reduced to PFC as a result of a special court-martial conviction.   Therefore, there is no error or injustice related to the rank/grade entry on his DD Form 214.
4.  The applicant's contention that his record should be changed to show that he was seriously wounded was carefully considered and found to be without merit.  The Western Union Telefax that was sent to his parents at the time of the incident in Vietnam specifically stated that the applicant was "slightly wounded" as a result of hostile action.  The Telefax further states that he was "not repeat not seriously wounded" when hit by fragments from a hostile booby trap.  Therefore, there is no basis for correcting his records to show he was "seriously wounded" in Vietnam.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

___  X          ___  X    __  ___ X      _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his general discharge and issuing the appropriate documentation showing that the applicant was separated with an honorable discharge on
25 January 1971.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of records to show his rank as SP4 and to show that he was seriously wounded.



      __________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)                                         AR20080018018



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ABCMR Record of Proceedings (cont)                                         AR20080018018



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