IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011237 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's Special Discharge Review Program (SDRP) upgrade to General be affirmed on his DD Form 214 (Report of Separation from Active Duty) and the reason for separation be changed to medical disability.

2.  Counsel states this request for discharge upgrade involves an individual recruited directly from the criminal court system.  He enlisted despite not being basically qualified in other areas.  Although indicators suggested he was not suitable for service, he was assigned almost immediately to combat which required him to be closely supervised. 

3.  The applicant was generally successful in the combat environment as evidenced by him earning the Combat Infantryman Badge and by the completion of a one-year combat tour.  During this tour, he experienced some psychiatric problems that resulted in hospitalization and his weapon being taken away.  He completed his tour and was assigned stateside duty and denied the use of any weapon.

4.  His psychiatric condition worsened and without close supervision he went into an absent without leave (AWOL) status for a length of time which ultimately resulted in an Under Other Than Honorable Conditions Discharge.  A psychiatrist later attributed his disciplinary actions to service-connected Post Traumatic Stress Syndrome (PTSD).

5.  It was the actions of the U.S. Army then, and the present laws, which should merit him an upgrade of his discharge.  With the proper medical treatment the applicant is leading a more productive life.  He has worked full time as a truck driver for many years.  He has been married to the same woman for nearly 40 years and his son was honorably discharged from the Army after a tour in Iraq, and he is now a police officer in state of New York.

6.  Counsel provides Tabs A through I:

a. Four issues justifying upgrade

b. Psychological treatment and "no weapons" order

c. Record of active duty assignments

d. Enlistment waivers

e. Sworn statement from the applicant

f. Sworn statement from the applicant’s wife

g. Statement of policy, U.S. Surgeon General 

h. Proposed Legislation, 111 Congress, HR 1701

i. Medical progress notes pertaining to PTSD

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 DD Form 4 shows he was born on 2 April 1950 and enlisted in the Army on 18 March 1968, for a period of 3 years.  A copy of a DA Form 2981 (Application for Determination of Moral Eligibility for Enlistment) shows he was arrested once at the age of 16 for joyriding in a stolen car.  While on probation, he showed no signs of aggressive hostility and behaved accordingly.  As a result, a waiver was granted for entrance in the military.  This form also shows in item 8 (Educational Level) that he completed 10th grade in June 1966 and he scored "28" on the Armed Forces Qualification Test (AFQT) and "76" on the General Aptitude Test (GT).  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  A copy of his DA Form 20 (Enlisted Qualification Record) shows in item        38 (Record of Assignments) that he completed a tour of duty in the Republic of Vietnam during the period 15 January 1969 through 14 January 1970.  He received "excellent" conduct and efficiency ratings while serving in Vietnam.

4.  A copy of a Standard Form (SF) 600 (Chronological Record of Medical Care) shows that on 25 September 1969 the applicant was recommended for psychiatric evaluation by his company commander.  As a result, he was hospitalized and released on 27 September 1969; he was released from the hospital after a 48-hour period and returned to duty with a "no weapons use" note. 

5.  After the completion of his tour in Vietnam, the applicant was reassigned to the 615th Engineer Company, Fort Carson, CO.  His records show he did not report as scheduled and went AWOL on 19 February 1970.  

6.  His records contain a copy of a letter (date unknown) written by his mother to the Department of the Army, Washington, DC, in which she addressed the applicant's extreme agitation, state of mind and chronic complaints of stomach pain and nausea after his return from Vietnam.  She stated the reason for his failure to report to Fort Carson, CO, was due to the applicant's belief that he would not get the appropriate medical help he so desperately needed.  

7.  On 17 March 1970, the Department of the Army responded to the applicant’s mother in the form of a letter.  The letter stated, in effect, the authority to determine if a Soldier's separation from the Army was warranted had been delegated to the commanders in the field.  If a Soldier felt he/she was medically unfit for further military service, he/she should contact his/her commanding officer and request a complete medical evaluation.  The letter also stated that no action could be taken to help her son while he remained in an AWOL status.

8.  His records show, he returned to military control on 21 September 1970 and was assigned to Headquarters, Special Troops, U.S. Army Training Center, Fort Dix, NJ. 

9.  The applicant went AWOL again on 6 October 1970 and did remain in absence until 19 October 1970.  He went AWOL again on 21 October 1970 and did not return until 6 January 1971.    

10.  On 11 January 1971, the applicant voluntarily 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.

11.  Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  The applicant chose not to submit any statement with his request. 

12.  On 3 March 1971, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 

13.  The applicant's DD Form 214 shows he was discharged on 12 March 1971, under the provisions of Army Regulation 635-200, chapter 10, and was issued an Undesirable Discharge Certificate.  He had completed 2 years, 1 month, and 
23 days of net active service and had a total of 308 days of time lost.  He was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, and two Overseas Service Bars.

14.  The applicant's records show he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge and, on 9 August 1977, the ADRB denied the applicant's request. 

15.  On 31 January 1978, the applicant was notified by the Office of the Adjutant General and the Adjutant General Center, Washington, DC, that his application for upgrade of his discharge under the Department of Defense (DoD)-Special Discharge Review Program (SDRP) was considered by the ADRB and that his discharge had been upgraded to a General Discharge, Under Honorable Conditions, effective 4 January 1978.  

16.  On 16 November 1978, the applicant’s case was reconsidered by the ADRB using the uniform standards established in Department of Defense Directive 1332-28.  The ADRB concluded that the applicant’s GD issued under the provisions of the SDRP did not warrant affirmation.  This determination was made based on the applicant not satisfactorily completing 24 months of service and the applicant’s repeated absences which resulted in separation with an undesirable discharge.  The ADRB proceedings informed the applicant that while this decision did not change the discharge he now had, it may impact his ability to acquire VA benefits.  

17.  A DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued which stated his discharge was reviewed in accordance with Public Law 95-126 and a determination was made to change his discharge to Under Honorable Conditions.  Item 9c (Authority and Reason) contains dashes.

18.  Counsel has submitted four issues in support of the petition for physical disability discharge:

	a.  The actions of the U.S. Army, at the time of enlistment, were such as to shift some liability to the Army for the subsequent disciplinary infractions,

	b.  The Army took a below standard individual and sent him to combat.  When the individual developed problems, the Army did nothing to help, therefore further aggravating the problems,

	c.  All discipline problems subsequent to combat were service connected, thereby making disciplinary action, rather than medical help, inappropriate and the subsequent discharge inappropriate, and

	d.  Under existing policies, the applicant would have received different treatment with different results and would have never been discharged without certain mandates being followed. 

19.  An excerpt from the SDRP, which was submitted by counsel, shows the applicant served a tour in South-East Asia, completed 24 months of active service, was under the age of 18 years at the time of entry on active duty, did not have a high school diploma or the equivalency at the time of his entry, and required a waiver to enlist.  Item 20 (Highest Education Level Successfully Completed) of his DD Form 214 shows he completed 9 years of secondary/high school at the time of his enlistment.

20.  The copy of the sworn statement from the applicant states he is seeking an honorable discharge.  His very limited education has prevented him from understanding the regulations.  He states his family insisted that he join the Army when, in fact, he had no real desire to join.  His test scores prior to entry were very low which placed him in a Category "V" status.  He contends he did try very hard while in basic training which resulted in "excellent" efficiency and conduct ratings.

21.  He also states that while in Vietnam he spent a lot time with the infantry on patrol.  He would get to know these Soldiers and then they would get killed.  During a patrol in September 1969, four U.S. Soldiers were killed and so were enemy soldiers.  While searching for booby traps on the enemy, he found family pictures on one of the deceased, which made the situation too real for him to handle.  He became very angered and confused.  

22.  A brand new master sergeant was assigned to his unit who had no idea how to handle troops in a combat environment and who had no respect for them.  The applicant states he (applicant) showed up late for a meeting and was openly rebuked for it.  He was told by the master sergeant that he was a disgrace to the uniform and had no business in the Army.  The applicant states that this attitude might have been funny in basic training, but there was no place for it in combat.  He claims he lost it and told the master sergeant he would kill him, and then ran and hid.  After he was found, he was sent to the hospital for a psychiatric evaluation.  He remained there two days and was released back to his unit for full duty participation without permission to use a weapon.  He states he started to develop stomach problems.

23.  When he returned home from Vietnam, he was in bad shape, both mentally and physically.  He was due to report to Fort Carson, CO but was told he would continue to be barred from the use of all weapons.  He contends he could not see himself continuing to serve in the military without a weapon and the shame he would face at his new duty station because of it.  He decided not to return to duty right away.  In the interim, his mother sought help for him from the Veterans Administration (VA) and from the Army but received no response. 

24.  Although he finally surrendered to military authorities, he states he does not remember talking to any officer or to an attorney.  He signed the papers and was discharged.  He thought his earlier discharge upgrade would allow him to receive psychiatric help through the VA.  His stomach problems were continuous and so severe he eventually had to have surgery.  He has learned a lot from this tragic part of his life.  He will be forever affected by the death and destruction he witnessed in Vietnam.  He will also be affected from the lasting effects of facing combat without the use of a weapon; however, he has tried not to let this define him.  He requests that his entire life be considered and he be granted an honorable discharge for his honorable service.

25.  The applicant's wife provides a statement in which she describes how they grew up together as children and their current relationship.  She states she received a letter from him while he was in Vietnam and he seemed very depressed.  He had nothing good to write about.  She describes how he suffered with stomach problems and sleeping problems upon his return.  She contends that these problems eventually led to her husband being diagnosed with an ulcer, and, in 1992, having a portion of his stomach removed. 
 
26.  She goes on to describe the anxiety and depression he was experiencing about being AWOL at the time and the angst he had about starting a new family because she was pregnant.  She states that because of all the things that her husband saw and experienced in Vietnam, and the way in which the Army treated him, he was not able to hold a steady work.  Again, the sleeping problems retuned and he did not know how to make things better for them. 

27.  During the year 2001, the applicant started seeing a VA psychiatrist and was diagnosed with PTSD.  He was later told that he was no longer eligible for these benefits and could no longer be seen by the VA.  She is asking for his records to be reviewed and his discharge upgraded to honorable because he did fight for his country in a time of need. 

28.  Medical record progress notes, dated 27 November 2009, indicate that the applicant was diagnosed with PTSD as a result of his tour in Vietnam and the following contributors were noted:

* Acute Stress Disorder (in-country) leading to PTSD
* Bronchial Asthma
* Catastrophic stressors; combat trauma

29.  The Department of Defense (DOD) SDRP was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 4 August 1964 and 28 March 1973, inclusive.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused therefrom in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act of misconduct that would be subject to criminal prosecution under civil law.

30.  On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions (UOTHC) discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.

31.  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. 

32.  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.

33.  PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  The condition is described in the current DSM-III-R, pages 247 through 251.  While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier's heart, effect syndrome, combat fatigue, and traumatic neurosis.  During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis.  Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public.  While PTSD was not recognized as a specific illness at the time of the applicant's separation from the service, the fact that an individual might not be fit for further military service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 (Standards of Medical Fitness), which was in effect at the time of his separation.  The Army has established standards and procedures for determining fitness for retention and utilized those procedures and standards in evaluating individuals at that time.  The specific diagnostic label given to an individual's condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  The counsel's requests, in effect, that the applicant's Special Discharge Review Program (SDRP) upgrade to General be affirmed on his DD Form 214 and the reason for separation be changed to medical disability was carefully considered and it was determined to have enough merit for a partial relief.  

2.  The contentions made by the applicant and his counsel have been noted, as well as the latter medical documentation provided by what appears to be competent medical authorities.  However, at the time of his discharge, his records did not contain any medically unfitting disability which required physical disability processing and because he went AWOL he denied himself the chance to be found medically unfit.  Therefore, there is no basis for granting a separation by means of physical disability. 

3.  The applicant's military records indicate he did suffer some type of traumatic event while in Vietnam which required a full psychiatric evaluation on 
25 September 1969 and a two-day hospital stay.  A copy of an SF 600 confirms this visit.  

4.  There is a letter written by his mother in 1970, which discusses the reason for her son’s absence.  She stated it was because of his extreme agitation, his state of mind and chronic complaints of stomach pain after his return from Vietnam and his disbelief that the Army would provide him the medical treatment he needed.  A copy of medical record progress notes, dated 27 November 2009, indicates that the applicant was diagnosed with Acute Stress Disorder (in-country) which led to PTSD, and that it was closely related to catastrophic stressors and combat trauma.  It is presumable that this extended period of unauthorized absence was a direct result of the above stressors and his service in Vietnam.
5.  His records show he successfully served on active duty during the period 18 March 1968 through 18 February 1970.  He successfully completed a 
12-month tour of duty in Vietnam and was awarded the Combat Infantryman Badge.  This speaks extremely well of his service in Vietnam, since his specialty was not Infantryman.  He received all "excellent" conduct and efficiency ratings during this tour, without any lost time in between for a total of 23 months.  His first period of AWOL did not occur until his return from Vietnam.  

6.  On 16 November 1978, the ADRB concluded that the applicant’s General Discharge did not warrant affirmation because the applicant did not satisfactorily complete 24 months of service and his 308 days of lost time.  However, in total he did complete 24 months creditable active service.  

7.  The SDRP, in pertinent part, did add provisions for upgrading of a discharge if a Soldier received a military award or decoration other than a service medal and did successfully complete a tour of duty in Southwest Asia. 

8.  Notwithstanding the original determination by the ADRB, dated 16 November 1978, while the applicant’s service clearly does not warrant an upgrade to an Honorable Discharge his records show he performed satisfactorily for the
23 months prior to his period of AWOL.  

9.  In view of the foregoing and as a matter of justice, it would be appropriate to affirm the applicant’s previously-upgraded discharge under honorable conditions.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above to grant partial relief by affirming the applicant's general under honorable conditions discharge, the Board determined that there was insufficient evidence to show the applicant suffered from a mental disorder significant enough to excuse his misconduct.

2.  The applicant was evaluated on 25 September 1969 in Vietnam and returned to duty, albeit without a weapon.  This directly conflicts with the November 2009 statement that the applicant had an acute stress disorder or PTSD.  

3.  Therefore, the Board further determined that the evidence presented does not demonstrate the existence of a probable error or injustice and that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   XXX____   ___
               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)                                         AR20100011237



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ABCMR Record of Proceedings (cont)                                         AR20100011237



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