IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090005061 


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 reconsideration of his request to upgrade his undesirable discharge.

2.  The applicant states, in effect, the Department of Veterans Affairs (VA) recently reviewed the facts and circumstances that led to his undesirable discharge and determined his service to be honorable for VA purposes.  He also states the VA determined that the charges that led to his request for discharge for the good of the service did not establish a pattern of willful and persistent misconduct.  He adds the VA has determined that he was suffering from a mental condition; post traumatic stress disorder (PTSD), related to his Vietnam experiences.

3.  The applicant also states:

   a.  the review of his request for discharge by the Staff Judge Advocate at the time indicated "[t]here is no reasonable grounds for belief that an EM [Enlisted Member] is, or was at the time of his misconduct, mentally defective, deranged, or abnormal."

   b.  the Army had prior knowledge of his mental health condition because he had been hospitalized at the VA Hospital in Minneapolis, Minnesota from 10 June to 17 June 1968, diagnosed with "anxiety reaction," and transferred to William Beaumont General Hospital, El Paso, Texas.  He also states he was held in the open psychiatric ward from 26 June to 12 July 1968, diagnosed with "[t]ransient stress reaction, acute, moderate; manifested by anxiety, insomnia and fear of death," and assigned duty with permanent assignment limitations.

   c.  the Army should have taken into consideration his mental state prior to sending him back to Vietnam, or at least when considering the type of discharge he was to be issued.  He also states he served as a door gunner on an assault helicopter in Vietnam and earned his fourth award of the Air Medal with "V" device for heroism against the enemy.  He adds that his personal statement, dated 1 February 2008, that was submitted with his original application offers details regarding the life-threatening events he experienced in Vietnam.

   d.  his military service should be considered honorable because his military career was uneventful for disciplinary actions until he was exposed to combat trauma where he saw his friends killed and he was forced to kill others.  He also believes that if he had received treatment following the combat trauma he experienced during two tours of duty in Vietnam, he may not have been so easily provoked by the individuals he fought and may not have become an alcoholic.

   e.  prior to his final discharge from the Army he had already received two honorable discharges.  He concludes by stating he was not in a state of mind to go through a court-martial when charges were preferred against him and he  submitted his request for discharge for the good of the service based on the advice of legal counsel.  However, he felt under duress at the time he signed the request because he was not aware of any other alternatives.

4.  The applicant provides, in support of his application, a self-authored statement, dated 6 March 2009, along with 116 pages of documents that the applicant identifies in a Table of Contents.

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 AR20080003217, dated 13 May 2008.

2.  The applicant enlisted in the Regular Army (RA) for a period of 3 years on
9 June 1967.  Upon completion of training, he was awarded military occupational specialty 62A (Engineer Equipment Assistant).  He was honorably discharged on 25 May 1968 for the purpose of immediate reenlistment.  He reenlisted for a period of 3 years on 26 May 1968 and he was honorably discharged on 
22 October 1969 for the purpose of immediate reenlistment.  He reenlisted for a period of 6 years on 23 October 1969.  The highest grade he attained during his military service was specialist four (SP4)/E-4.

3.  Headquarters, 101st Airborne Division (Airmobile) (RVN), General Orders Number 3011, dated 12 April 1971, show the applicant was awarded the Air Medal with "V" Device (Fourth Award) for heroism while participating in aerial flight into Laos on 8 February 1971.

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 Republic of Vietnam (RVN) from 29 March to 31 May 1968; in Germany from 4 May 1969 to 3 January 1970; in the RVN from 15 July 1970 to 14 July 1971; and in Germany from
14 October 1972 to 9 August 1973. 

   b.  Item 39 (Campaigns) shows he served in the RVN during the Tet Counteroffensive, Vietnam Counteroffensive Phase VI, and Vietnam Counteroffensive Phase VII campaigns; a total of three campaigns.  [He actually served during four campaigns.]

5.  On 22 May 1973, court-martial charges were preferred against the applicant for one specification of unlawfully striking another Soldier, on or about 16 March 1973; one specification of kicking another Soldier, on or about 16 March 1973; one specification of unlawfully striking a second Soldier, on or about 20 May 1973; one specification of willfully disobeying a lawful order from a superior noncommissioned officer, on or about 20 May 1973; and one specification of wrongfully communicating a threat to kill a Soldier, on or about 20 May 1973.

6.  A Standard Form (SF) 88 (Report of Medical Examination), dated 26 June 1973, administered for the purpose of the applicant’s separation medical examination, shows in the Clinical Evaluation section, Item 42 (Psychiatric) that the examining physician placed an "x" in the "Normal" column and also entered the note, "See Attached DA Form 3822-R."  Item 73 (Notes (Continued) and Significant or Interval History) contains the typed entry, "Health Record Reviewed" and the handwritten entry, "I am in Good Health Prior To Last Physical," along with the applicant’s signature.  Item 74 (Summary of Defects and Diagnoses) contains the entry "42.  See attached DA Form 3822-R on Psychiatric Evaluation."  This document also shows the examining physician found the applicant qualified for separation.

7.  On 2 July 1973, following consultation with legal counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.
 
8.  On 31 July 1973, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

9.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 10 August 1973 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service and issued an Undesirable Discharge Certificate.  At the time he had completed 3 years, 9 months, and 18 days of net active service this period; 2 years, 4 months, and 14 days of other service; and 6 years, 2 months, and 2 days of total active service.

10.  In support of his application, the applicant provides a self-authored statement, dated 6 March 2009, along with 116 pages of documents identified in a Table of Contents; these include:

   a.  VA Administrative Decision [August 2008] that shows the VA reviewed the facts and circumstances that led to his undesirable discharge and determined his service to be honorable for VA purposes;

   b.  VA, Bishop Henry Whipple Federal Building, St. Paul, Minnesota, Rating Decision, dated 20 August 2008, that shows the VA granted the applicant’s claim of service connection for PTSD with an evaluation of 50 percent, effective
7 February 2008.  It also shows the applicant’s active duty service for the period from 23 October 1969 to 10 August 1973 was determined to be honorable for VA purposes;

	c.  VA, Minneapolis VA Medical Center, Compensation and Pension Exam Report, for an Initial Evaluation for PTSD Exam conducted on 24 April 2008.  This document shows clinical interview information was provided by the applicant pertaining to his military service and combat activities during two tours of duty in Vietnam, including the events that occurred while flying on missions as a door gunner into Laos in February 1971.  It also shows the applicant experienced events consistent with Criterion A for PTSD and that he has been experiencing sufficient other symptoms to warrant a diagnosis of PTSD; and

	d.  VA Clinical Records for the period from 17 June to 12 July 1968 that document the applicant’s psychiatric evaluation at the William Beaumont General Hospital, El Paso, Texas.  The DA Form 8-275-2 (Clinical Record Cover Sheet) shows the applicant was diagnosed with "[t]ransient stress reaction, acute, moderate; manifested by anxiety, insomnia and fear of death.  External Precipitating Stress:  severe, combat duty in Vietnam.  Premorbid Personality and Predisposition:  moderate, history of features of immaturity in his personality and longitudinal history of acting out behavior.  Degree of Psychiatric Impairment:  minimal for further duty."  This document also shows the applicant was discharged from the hospital on 12 July 1968 for duty with permanent assignment limitations due to the above diagnoses.  The limitations are not noted on the form.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 128 for assault and Article 91 for willful disobedience of a noncommissioned officer.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the service at that time.

13.  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.

14.  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.

15.  Code of Federal Regulations (CFR), Title 38 (Pensions, Bonuses, and Veterans' Relief), Part 3 (Adjudication), paragraph 3-12 (Character of discharge), provides, in pertinent part, that a discharge under honorable conditions is binding on the VA as to character of discharge.  This document also provides, in pertinent part, that a discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions: (1) acceptance of an undesirable discharge to escape trial by general court-martial; (2) mutiny or spying; (3) an offense involving moral turpitude (this includes, generally, conviction of a felony); and (4) willful and persistent misconduct [emphasis added].  This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct.  A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious.

16.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA disability rating does not establish error or injustice in the Army separation process.  As a matter of information, an Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different fitness determination/disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for an upgrade of his undesirable discharge should be reconsidered because:
   a.  the VA recently reviewed the facts and circumstances that led to his undesirable discharge and determined his service to be honorable for VA purposes;

   b.  the charges that led to his request for discharge for the good of the service did not establish a pattern of willful and persistent misconduct;

   c.  the VA has determined he suffers from a mental condition (i.e., PTSD related to his Vietnam experiences);

	d.  the Staff Judge Advocate at the time indicated there were no reasonable grounds for belief that the applicant is, or was at the time of his misconduct, mentally defective, deranged, or abnormal.  However, the Army had prior knowledge of his mental health condition because he had been hospitalized and diagnosed with anxiety reaction; transient stress reaction, acute, moderate; manifested by anxiety, insomnia and fear of death.  He was assigned duty with permanent assignment limitations;

   e.  the Army should have taken into consideration his mental state prior to sending him back to Vietnam and his prior honorable combat military service when considering the type of discharge he was to be issued; and

   f.  he felt under duress at the time he signed the request because he did not know of any other alternatives.

2.  The applicant’s two previous periods of honorable active duty service
(i.e., from 9 June 1967 to 25 May 1968 and from 26 May 1968 to 22 October 1969 have been documented by two separate DD Forms 214.  This service was performed prior to the applicant’s acts of indiscipline.

3.  The applicant reenlisted in the RA on 23 October 1969 and his acts of indiscipline began in 1973 while he was serving in Germany.

4.  He was examined by a psychiatrist on the staff of the William Beaumont General Hospital, El Paso, Texas, in 1968.  He was diagnosed with "[t]ransient stress reaction, acute, moderate; manifested by anxiety, insomnia and fear of death.  External Precipitating Stress:  severe, combat duty in Vietnam.  Premorbid Personality and Predisposition:  moderate, history of features of immaturity in his personality and longitudinal history of acting out behavior.  Degree of Psychiatric Impairment:  minimal for further duty."  The applicant was discharged from the hospital for duty with permanent assignment limitations due to the above diagnoses.  The limitations were not indicated.
5.  The applicant underwent a separation medical examination prior to separation from active duty.  The examining physician considered the applicant’s psychiatric evaluation, and he found the applicant qualified for separation.  Thus, there were no disqualifying mental or physical defects sufficient to warrant disposition of the applicant through medical channels prior to, or at the time of discharge.

6.  His request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the evidence of record shows an undesirable discharge is authorized based on the reason for the applicant’s request for discharge and that it was warranted by the circumstances of the case.  Thus, considering all the facts of the case, the applicant’s discharge is appropriate. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20080003217, dated 13 May 2008.



      _______ _   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)                                         AR20090005061



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ABCMR Record of Proceedings (cont)                                         AR20090005061



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