IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090004344 


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 upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, his behavior problems were caused by his wartime experiences and developed after his return from Vietnam.  He also states that he feels his discharge should be upgraded because he was suffering with a mental illness that was not recognized at the time and he now is rated
70 percent disabled based on post traumatic stress disorder (PTSD).

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 27 June 1972; Certificate of Psychiatric Evaluation, Mental Hygiene Consultation Service (MHCS), Irwin Army Hospital, Fort Riley, Kansas, undated; and Department of Veterans Affairs (VA), Erie, Pennsylvania, Disability Benefit Compensation Report, dated 14 December 2007.

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.  A DD Form 214 shows the applicant enlisted in the Regular Army (RA) and entered active duty for a period of 4 years on 27 February 1967.  He was honorably discharged on 21 November 1968 at Fort Buckner (Okinawa) to immediately reenlist in the RA.  At the time he had completed 1 year, 8 months, and 25 days of net active service.

3.  Headquarters, II Field Force Vietnam Artillery (RVN), General Orders Number 922, dated 3 August 1970, in pertinent part, shows the applicant was awarded the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the RVN from September 1969 to August 1970.

4.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

	a.  Item 31 (Foreign Service) shows he served in the U.S. Army, Pacific (USARPAC) in Okinawa from 19 September through 10 December 1968 and in the USARPAC in the Republic of Vietnam (RVN) from 1 January 1969 through 26 September 1970.  This item also shows he subsequently served in the
U.S. Army, Europe (USAREUR) in Germany from 2 November 1970 through
10 December 1971.

	b.  Item 33 (Appointments and Reductions) shows, in pertinent part, that during his overseas service in the RVN the applicant was advanced to the grade of private first class with a date of rank (DOR) of 18 February 1969, advanced to the grade of specialist four with a DOR of 19 July 1969, and promoted to the grade of sergeant with a DOR of 12 July 1979.

   c.  Item 39 (Campaigns) shows he served in the RVN during the Vietnam Counteroffensive Phase VI (2 November 1968 - 22 February 1969); Tet 69 Counteroffensive, 1969 (23 February 1969 - 8 June 1969);  Vietnam Summer - Fall 1969 (9 June 1969 - 31 October 1969); Vietnam Winter - Spring 1970
(1 November 1969 - 30 April 1970), Sanctuary Counteroffensive (1 May 1970 - 30 June 1970); and Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) campaigns, for a total of six campaigns.
   
   d.  Item 41 (Awards and Decorations) shows he was awarded the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.

   e.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration of Term of Service]) shows the applicant was absent without leave (AWOL) for 2 days from 25 August through 26 August 1971 and then AWOL for 80 days from 11 November 1971 through
29 January 1972.

5.  On 22 April 1971, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on two occasions.  His punishment consisted of forfeiture of $75.00 per month for one month, 5 days of restriction, and 5 days of extra duty.

6.  On 20 October 1971, the applicant was tried by a special court-martial.  He pleaded not guilty to all charges and specifications and was found guilty of disrespect toward his superior commissioned officer, disobeying a lawful command (two specifications), disobeying a lawful order, being AWOL from
25 August through 26 August 1971, and failing to report to his appointed place of duty at the time prescribed (three specifications).  The applicant’s sentence was to be confined at hard labor for 30 days and to forfeit $100.00 pay per month for three months.  On 9 December 1971, the convening authority approved the sentence and directed the applicant be confined at the USAREUR/U.S. Forces Confinement Facility, Mannheim (Germany) and the confinement served therein or elsewhere as competent authority may direct.

7.  On 6 June 1972, the applicant’s battery commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability.  The battery commander’s recommendation of the applicant's separation was based on a psychiatric evaluation from the psychiatrist, Mental Health Community Services (MHCS), Irwin Army Hospital, which indicated the applicant was suffering from a severe maladjustment reaction which tends to exist permanently.  The battery commander also recommended a General Discharge Certificate be issued to the applicant.

8.  On an unspecified date, the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  The applicant indicated that statements in his own behalf were submitted; however, the applicant’s separation 
packet does not contain any statements on the applicant’s behalf.  The applicant acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  The applicant’s legal counsel also affixed his signature to the document.

9.  The applicant’s administrative separation packet contains a Certificate of Psychiatric Evaluation, MHCS, Irwin Army Hospital, Fort Riley, Kansas, that shows the hospital psychiatrist examined the applicant on 22 May 1972.  This medical official noted that, despite five and one half years in the Army, the applicant became decreasingly functional over the last 18 months to the point where he was totally unadjusted and unable to adjust to the Army.  He added that the applicant’s change of heart and mind occurred following his return from Vietnam and he could not readjust or find a place for himself.

   a.  This medical official noted the applicant’s frustration and dissatisfaction took the form of irritation with the Army, and he disobeyed extensively, went AWOL, and received NJP and a court-martial.  He added that the applicant was uncommitted to Army life, rebellious to Army discipline, not a candidate for rehabilitation, and that separation was indicated.

   b.  The hospital psychiatrist stated that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He added the applicant did not manifest a psychosis or neurosis, and his further management was the commander’s prerogative.  The applicant was diagnosed with severe maladjustment reaction and the hospital psychiatrist also indicated he believed that the applicant would not adjust to military service and that further rehabilitative efforts would be nonproductive.  He concluded that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.

10.  On 5 August 1985, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unsuitability and directed the applicant be issued a General Discharge Certificate.

11.  The applicant’s DD Form 214 shows he was discharged from the U.S. Army under honorable conditions on 27 June 1972, under the provisions of Army Regulation 635-212 with Separation Program Number (SPN) 264, for unsuitability (character and behavior disorder) and issued a DD Form 257A (General Discharge Certificate).  At the time of his discharge the applicant had completed 3 years, 4 months, and 14 days of net active service this period;
1 year, 8 months, and 25 days of other service; and 5 years, 1 month, and 9 days of total active service.

12.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

13.  In support of his application, the applicant provides copies of his DD Form 214 and Certificate of Psychiatric Evaluation, MHCS, Irwin Army Hospital, Fort Riley.  These two documents were previously considered in this Record of Proceedings.  He also provides a copy of a VA, Erie, Pennsylvania, Disability Benefit Compensation Report, dated 14 December 2007, that shows, in pertinent part, the applicant was originally granted a disability rating for PTSD on
8 October 1997 and he is currently rated at 70 percent, effective 5 August 2002.  This document also shows the VA granted the applicant a combined permanent disability rating of 80 percent effective 5 August 2002.

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of several conditions existed including character and behavior disorders.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), which superseded Army Regulation 635-212, was revised on 1 December 1976 following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, 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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was honorably discharged because after returning from the RVN he was having behavior and mental health issues related to his combat experience that were not recognized at the time and, as a result, he was improperly discharged under honorable conditions.  He adds that the VA has granted him a 70 percent disability rating based on his PTSD.

2.  Records show the applicant reenlisted in the RA on 22 November 1968 and his acts of indiscipline began in August 1971 while he was serving in Germany.

3.  Records show the applicant was examined by a psychiatrist on the staff of the MHCS, Irwin Army Hospital, Fort Riley, to ensure he was mentally fit for discharge.  The psychiatrist determined the applicant became decreasingly functional over the last 18 months to the point where he was totally unadjusted and unable to adjust to the Army.  He also found that there were no disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels and that his further management and administrative separation was the prerogative of the commander

4.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

5.  It is noted that prior to the applicant's acts of indiscipline he served nearly
21 months in the RVN during six campaigns; was promoted three times while serving in the RVN, achieved the rank of sergeant; and he was awarded the Army Commendation Medal.

6.  The evidence of record shows that historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  Therefore, in view of all of the foregoing, the applicant’s military service records should be corrected to show he was honorably discharged, effective 27 June 1972, under the extraordinary provisions of Department of the Army Memorandum, dated 8 February 1978.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  issuing the applicant an Honorable Discharge Certificate, dated 27 June 1972, in lieu of the General Discharge Certificate of the same date now held by the applicant; and

   b.  issuing the applicant a new DD Form 214 reflecting the above corrections.



      ___________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)                                         AR20090004344



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ABCMR Record of Proceedings (cont)                                         AR20090004344



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