IN THE CASE OF:	  

		BOARD DATE:	 12 July 2011 

		DOCKET NUMBER:  AR20100029173 


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 undesirable discharge to an honorable discharge or in the alternative a medical disability discharge.

2.  He states he returned from Vietnam with Post-Traumatic Stress Disorder (PTSD) and he was mentally unstable.  

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter from a civilian doctor, dated 27 April 2010
* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 29 April 2010

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 enlisted in the Regular Army on 26 March 1969 for a period of
3 years.  He completed training and he was awarded military occupational specialty 12B (Combat Construction Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 31 (Foreign Service) he served in Vietnam from 3 September 1969 through 2 September 1970
* Item 33 (Appointments and Reductions) the highest rank/grade he attained while on active duty was specialist four (SP4)/E-4 
* Item 38 (Record of Assignments) he received "excellent" and "good" conduct and efficiency ratings up until 6 January 1971, wherein the next two ratings were "unsatisfactory"
* Item 41 (Awards and Decorations) he was awarded the Army Commendation Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and two overseas service bars
* Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) he had eight periods of being absent without leave (AWOL) beginning 6 January through 1 September 1971 for a total of 42 days

4.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status) that shows he was found unconscious in his hotel room in Bangkok, Thailand on 22 April 1971, due to a suspected overdose of an opiate. 

5.  On 20 May 1972, the applicant was convicted by a special court-martial of the following offenses under the Uniform Code of Military Justice (UCMJ):

	a.  for being AWOL from 3-4 March 1971 and 10-29 March 1971;

	b.  for disobeying a lawful general regulation by driving his privately owned vehicle (POV) on Fort Campbell without proper registration on 10 February 1971;

	c.  for disobeying a lawful command from his superior commissioned officer on 4 March 1971 to remove his POV from the Fort Campbell reservation and not to bring it on Fort Campbell again unless it was properly registered with the Provost Marshal;

	d.  for disobeying a traffic signal (red light) on Fort Campbell on 9 May 1971; and

	e.  for driving his POV on Fort Campbell without having it registered with the Provost Marshal on 9 May 1971.

6.  He was sentenced to confinement at hard labor of 1 month, forfeiture of $100.00 per month for 3 months, and reduction to the rank/grade of private (PV1)/E-1.  On 11 June 1971, the Special Court-Martial Convening Authority approved the sentence, but suspended that portion of the sentence adjudging confinement at hard labor for 1 month and that portion of the reduction to E-1, for a period of 6 months, unless the sentence is sooner vacated.

7.  On 12 July 1971, his company commander submitted a certificate for unsuitability for reenlistment (bar to reenlistment) on the applicant.  He noted the applicant's repeated violations of the UCMJ which included indebtedness, AWOL, and traffic violations.  He also noted all other rehabilitation and counseling efforts had failed.  The applicant acknowledged receipt of the commander's intent on the same day and elected not to submit a statement in his own behalf.

8.  The request for bar to reenlistment was forwarded to the Headquarters Command Legal Section and on 19 July 1971, the bar to reenlistment was approved. 

9.  On 16 August 1971, his company commander requested a waiver for rehabilitative transfer and noted the applicant was being considered for elimination from the U.S. Army under the provisions of Army Regulation 635-212 (Discharge-Unfitness and Unsuitability) for unfitness.  

10.  He was given a mental status evaluation on 24 August 1971 by a qualified medical officer.  He was found to show the following:

* Passive aggressive behavior
* Fully alert
* Fully oriented
* A level mood
* Thinking was clear
* Thought content was normal
* Good memory
* Mentally responsible


* Able to distinguish right from wrong and to adhere to the right
* Mental capacity to understand and participate in board proceedings
* Met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3

11.  On 21 September 1971, the company commander initiated separation action on the applicant under the provisions of Army Regulation 635-212 and stated the reason as the applicant having been one continuous problem since his assignment to the unit on 8 October 1970.  His record reflected characteristic misconduct and an immature, negative attitude toward his duties and responsibilities.  

12.  His commander also noted he had repeatedly gone AWOL, he was once dropped from the rolls of his unit, and he had consistently been in legal and financial problems with civilian authorities.  When compared with other Soldiers, his appearance and military bearing were definitely substandard and he was a detriment to the unit in every way.  He recommended the applicant receive an undesirable discharge. 

13.  On 9 September 1971, his battalion commander recommended approval with issuance of an Undesirable Discharge Certificate.

14.  On 10 September 1971, his brigade commander recommended approval with issuance of a DD Form 258A (Undesirable Discharge Certificate).  He noted that the applicant requested to have his case considered by a board of officers. 

15.  His record is absent of evidence or the results of a separation board; however, on 5 October 1971, the commanding general (a brigadier general) of Fort Campbell approved both the waiver for a rehabilitative transfer and the applicant's discharge under the provisions of Army Regulation 635-212  with an Undesirable Discharge Certificate. 

16.  Accordingly, he was discharged on 27 October 1971.  He completed 2 years, 
5 months, and 20 days of total active service with 1 year of foreign service in Vietnam.  He also had 42 days of time lost due to AWOL.

17.  He submitted a letter from a civilian physician, dated 27 April 2010.  This letter states, in part, that the applicant is a 60 year old male with a history of nervous disease.  He presents continuous sleep problems, nightmares, and flashbacks of traumatic incidents he had at war.  He also presents episodes of panic attacks, a depressed mood, with changes in his sleep and eating patterns.

18.  The physician also states that the applicant was attacked multiple times at war and his life was at risk of death.  He gave his support as a combat engineer and he was under constant stress because the enemy could attack at any time.  He had a hard time adapting to military life and he was punished because of it.  The physician petitioned the Board to evaluate the applicant carefully due to the medical evidence which shows he has PTSD in conformance with Diagnostic and Statistical Manual of Mental Disorders (DSM) - IV.

19.  He also submitted a copy of a VA Form 21-4138, dated 29 April 2010, that shows he submitted documentation to the VA pertaining to PTSD.

20.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

22.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), 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.

23.  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.
24.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the DSM-IV.  The condition is described in the current DSM-IV, pages 424 through 429.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

26.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  His request for an upgrade of his undesirable discharge to an honorable discharge or in the alternative a medical discharge for PTSD has been carefully considered.  However, the evidence is insufficient to support this request. 

2.  The veracity of his claim that he is now suffering from severe chronic PTSD is not in question.  However, PTSD was recognized as a psychiatric disorder in 1980.  By regulation, a Soldier must be unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army's PDES.  

3.  His record contains no evidence and the applicant did not provide any evidence that shows he suffered from a disabling condition at any time during his 


active duty tenure that would have warranted his separation processing through medical channels.

4.  The fact that a civilian physician has found the applicant to have severe PTSD, as stated in her April 2010 letter, has no effect on the determination made by the Army at the time of his discharge.  However, the VA may award compensation for a medical condition which was incurred in or aggravated by active military service in accordance with its own policies and regulations.  The VA awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

5.  His record shows he was convicted by a special court-martial.  In addition, his commander noted his misconduct and his immature, negative attitude toward his duties and responsibilities as having been a constant problem.  His repeated offenses of AWOL and his legal and financial problems with civilian authorities made him unfit for continued military service.

6.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel for either an honorable or a general discharge.

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

8.  In view of the foregoing, there is an insufficient basis for granting the applicant's requested relief.

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 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)                                         AR20100029173



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ABCMR Record of Proceedings (cont)                                         AR20100029173



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