IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100027644 


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 earlier request for award of the Air Medal.  He also requests correction of his record to show he was medically discharged, which is a new issue.

2.  The applicant states the recent decision by the Army Board for Correction of Military Records (ABCMR) to upgrade his undesirable discharge to general under honorable conditions was somewhat favorable and appreciated.  However, he now believes he should have been granted a medical discharge in 1971 and the administrative action taken by his unit commanders under Army Regulation 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness/unsuitability was based on incomplete evidence.  There was no consideration given by the determining individuals for the medical conditions for which he was clearly suffering at that time.

3.  He states paragraph 6 of the discussion and conclusions section tends to confirm he was in fact suffering from post-traumatic stress disorder (PTSD) during his military service.  Since his unfitness/unsuitability was clearly a result of verifiable medical conditions, his discharge should have reflected those conditions and he should have been issued a medical discharge and military retirement based on the available medical evidence and the fact his original discharge was not in accordance with Army Regulation 635-212.  He believes he was denied due process in that a psychiatric evaluation, dated 22 August 1970, demonstrated he was suffering from at least some symptoms of PTSD at that time which was confirmed by a Department of Veterans Affairs (VA) medical review board.

4.  He believes he should have been referred to a medical evaluation board and a physical evaluation board for proper evaluation before his discharge in 1971.  He points out two of the so-called counseling sessions noted in his discharge packet were completed on 19 and 21 November 1971; however, his discharge packet also shows he was absent without leave (AWOL) on those dates.  The evidence available in the records establishes reasonable doubt that he was properly counseled with regard to an administrative discharge.  His commander acted on incorrect and/or incomplete information to obtain an administrative discharge for unfitness.  His chain of command did not follow proper procedures and no effort was made by his commanders with regard to counseling and rehabilitation.  Therefore, his right to be properly counseled and rehabilitated as required by Army regulations was ignored by his chain of command because of his existing medical condition (PTSD) and was a violation of his individual rights.

5.  He further states that because of an existing medical condition (PTSD) from which he was suffering since his return from Vietnam in 1969, he was unduly reprimanded with Article 15's and a summary court-martial.  This continual reprimanding without a rehabilitative transfer or proper counseling led to him being AWOL.  During 1969/1970 he repeatedly asked his commanding officers for help with his inability to cope after his return from Vietnam.  Therefore, he requests his former rank of staff sergeant be restored.  He also believes his case may fall under Civil Action Number 77-0904 of 27 November 1979 referenced in Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 4-1a, since the psychology report issued on 22 September 1970 relates to drug abuse as a major part of the reason for his recommendation for an administrative discharge under the provisions of Army Regulation 635-212 for unsuitability.

6.  He states paragraph 3 of the Discussion and Conclusions section agrees that in all probability he did in fact participate in aerial flight during combat assault missions.  Although it appears no order for the Air Medal was published, he believes an order should have been published and was lost or simply overlooked.  He provides two eyewitness statements from retired sergeants.

7.  The applicant provides:

* documentation from his discharge packet
* letter from the VA, dated 26 October 2009
* Army Regulation 15-185, chapter 4 (Miscellaneous Provisions)
* Army Regulation 635-212 extract
* two eyewitness statements



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 ABCMR in Docket Number AR20090021730 on 15 July 2010.

2.  In support of his claim for the Air Medal, the applicant provides two eyewitness statements that are new evidence and will be considered by the Board.

3.  The two Soldiers recall several air assault missions the applicant participated in during 1967/1968 which would qualify him for the Air Medal.  They indicate they personally received the Air Medal in April 1968 for the same air assault missions in which the applicant participated.  They believe the applicant not receiving the Air Medal was an oversight on the part of the Department of the Army or a result of lost records and paperwork.

4.  He enlisted in the Regular Army for 3 years on 30 November 1966.  He was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He served in Vietnam from 13 December 1967 to 9 September 1969 and attained the rank of staff sergeant.

5.  He received four nonjudicial punishments (NJP's) for failing to go at the time prescribed to his appointed place of duty.

6.  He was tried and convicted by two courts-martial.

	a.  On 20 August 1970, a summary court-martial convicted him of failing to go at the time prescribed to his appointed place of duty.  The adjudged sentence was a reduction to private first class/E-3 and forfeiture of $100.00 pay per month for 1 month.

	b.  On 6 January 1971, a special court-martial convicted him of being AWOL from on or about 21 September to on or about 19 November 1970.  The adjudged sentence was a reduction to private/E-1 and confinement at hard labor for 3 months.

7.  He was examined by a psychiatrist on 20 August 1970.  The psychiatrist stated the applicant had been in service for 3 years and he was due to reach his expiration of term of service on 7 July 1971.  He stated the applicant admitted to a serious drug abuse problem with marijuana, amphetamines, and lysergic acid diethylamide (a hallucinogenic) and that he valued his drug use and he did not want to quit.  As a result, his work and marital status declined.  The applicant was described as "sullen, recalcitrant, and bitter" with an "immature personality and little impulse control or frustration tolerance."  The psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-212 for unsuitability.  On 5 January 1971, a medical doctor not trained in psychiatry attached the previous psychiatric evaluation and recommended the applicant be discharged under Army Regulation 635-212, determining the applicant met psychiatric retention standards and was able to distinguish right from wrong and adhere to the right.  He was found fit to participate in board proceedings.

8.  On 8 February 1971, his commander initiated administrative separation action against him under the provisions of Army Regulation 635-212 for unfitness – frequent incidents of a discreditable nature with military authorities.

9.  On 20 February 1971, the separation authority approved the applicant's discharge for unfitness and directed the issuance of an undesirable discharge.

10.  On 3 March 1971, the applicant was discharged for unfitness under the provisions of Army Regulation 635-212.  His DD Form 214 shows he completed 4 years, 1 month, and 4 days of creditable service with 89 days of lost time.

11.  There are no orders for the Air Medal in the available records.

12.  There is no evidence that shows he was diagnosed with PTSD or any mental or medical condition prior to his discharge.

13.  On 24 March 1974, the Army Discharge Review Board denied his request for a discharge upgrade.

14.  On 15 July 2010, the ABCMR upgraded his discharge to under honorable conditions (a general discharge) and changed his narrative reason for separation to unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.

15.  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 the following conditions existed:  (1) inaptitude, (2) character and behavior disorders, (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively), (4) alcoholism, (5) enuresis, and (6) homosexuality (Class III – evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

16.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

17.  Combat missions were divided into three categories.  A category I mission was defined as a mission performed in an assault role in which a hostile force was engaged and was characterized by delivery of ordnance against the hostile force, or delivery of friendly troops or supplies into the immediate combat operations area.  A category II mission was characterized by support rendered a friendly force immediately before, during or immediately following a combat operation.  A category III mission was characterized by support of friendly forces not connected with an immediate combat operation but which must have been accomplished at altitudes which made the aircraft at times vulnerable to small arms fire, or under hazardous weather or terrain conditions.

18.  To be recommended for award of the Air Medal, an individual must have completed a minimum of 25 category I missions, 50 category II missions or 100 category III missions.  Since various types of missions would have been completed in accumulating flight time toward award of an Air Medal for sustained operations, different computations would have had to be made to combine category I, II and III flight time and adjust it to a common denominator.

19.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders for the Air Medal in the available records.  In the absence of orders or other evidence of record showing the applicant received the Air Medal, the eyewitness statements provided by the applicant are not sufficient as a basis for award of the Air Medal.  Therefore, there is insufficient evidence on which to base award of the Air Medal in this case.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  In 2010, the ABCMR upgraded his undesirable discharge to under honorable conditions and changed his narrative reason for separation to unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.

4.  He contends he was suffering from medical conditions and PTSD at the time of his discharge.  However, there is no evidence and he provided no evidence that shows he was diagnosed with PTSD or any mental or medical condition prior to his discharge.  No evidence shows he was having mental problems in 1970/1971 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  His psychiatric evaluation, dated 20 August 1970, indicates he had a serious drug abuse problem.

5.  There is no evidence of record to show he was ever medically unfit to perform his duties.  Therefore, there is insufficient evidence to show he was eligible for physical disability processing and there is no basis for a medical discharge.

6.  He also requests that his former rank of staff sergeant be restored.  However, since he was reduced in rank (to private) as a result of his special court-martial on 6 January 1971, there is no basis for granting his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090021730, dated 15 July 2010.

2.  With regard to the applicant's new issue that he be granted a medical discharge, the Board further determined the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20100027644



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ABCMR Record of Proceedings (cont)                                         AR20100027644



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