IN THE CASE OF:	  

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120001982 


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, in effect, upgrade of his general discharge to an honorable discharge.

2.  The applicant states his discharge should be upgraded because he was:

* wrongfully discharged 
* wrongfully incarcerated
* denied proper medical care
* denied Purple Hearts – documents were even submitted
* denied access to his medical records – suffered a gunshot wound to the forearm, a groin injury, and a concussion
* sustained a traumatic brain injury (TBI) trying to defend a fellow Soldier from four or five others who were trying to kill him
* the TBI was followed by 17 years of amnesia
* he should not be held accountable because he did not know what he was doing

3.  The applicant provides a four-page narrative of his experiences in Vietnam and the difficulties he has had since returning, including his medical conditions and the problems he has encountered in dealing with the Department of Veterans Affairs (VA).  He also forwards copies of:

* several pages of photographs from Vietnam


* letters from the Army Review Boards Agency 
* a letter from the State of Florida, Office of Executive Clemency
* an eight-page letter to President Barack Obama
* an acknowledgement of correspondence from President-Elect Bill Clinton
* newspaper articles about the applicant's public fasts
* a 1995 report of a polygraph examination 
* a Unit History of the 2nd Squadron, 11th Armored Cavalry Regiment
* a civilian psychological evaluation, dated May 1983
* an April 1996 evaluation from a neurologist concluding the applicant may have a seizure disorder
* his DD Form 214 (Report of Transfer or Discharge) and discharge package

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 13 November 1968.  He completed training as a wireman and he was transferred to Vietnam where he served as a wireman with Howitzer Battery, 2nd Squadron, 11th Armored Cavalry Regiment from 4 May 1969 to 2 April 1970.  He was advanced to private first class (PFC)/E-3 in April 1969 and reduced to private (PV2)/E-2 in December 1969 as a result of nonjudicial punishment (NPJ) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ).

3.  Following his return to the United States he was stationed at Fort Sill, OK where he received NJP for being absent without leave (AWOL) from 23 June to
5 July 1970.  He was AWOL again from 3 to 7 August and 10 to 30 August 1970.

4.  On 19 October 1970, a bar to reenlistment was initiated because of the applicant's record of misconduct and the fact that his daily performance and attitude indicated unsuitability.  On the same date, he acknowledged he was being recommended for consideration to be barred from reenlistment.  He submitted a statement in his own behalf.

5.  In his statement he stated his trouble started in Vietnam with the use of drugs.  Since then he would get depressed and suffer what he termed a "flashback."  During these periods he could not control his behavior because he never knew where he was or what he was doing.  He was sent to mental health but that did not help.  He asked to see a psychiatrist who immediately told him he would be discharged.  Then his family started having financial problems and this increased his emotional strain.  He went AWOL again and during that time he had more "flashbacks."  He decided to try and obtain a discharge.

6.  On 24 November 1970, the applicant's Bar to Reenlistment Certificate was approved.

7.  On 19 February 1971, contrary to his pleas, a special court-martial convicted him of being AWOL from 2 September to 21 December 1970.  The approved sentence consisted of confinement for 3 months.

8.  On 22 March 1971, the applicant's company commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) because of unsuitability with a general discharge.  He was advised he had the right to present his case before a board of officers, to submit statements in his own behalf, to be represented by counsel, and to waive his rights in writing.  He acknowledged notification of the proposed separation action on the same date.

9.  A psychiatric examination in conjunction with a 10 March 1971 separation medical examination revealed no evidence of any medical condition that would warrant treatment, hospitalization, or disposition through medical channels.  The applicant was determined to be capable of distinguishing right from wrong and adhering to the right.  He possessed sufficient mental capacity to act on his own behalf in administrative procedures.  The psychiatrist opined that the applicant was poorly motivated for service and would probably continue to be an administrative problem if retained.

10.  On 24 March 1971, the applicant consulted with counsel, waived consideration of his case by a board of officers, and declined to submit a statement in his own behalf.  He acknowledged he could expect to encounter substantial prejudice in civilian life in the event a general discharge is issued to him.


11.  On 24 March 1971, the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-212 for unsuitability, specifically based on his receipt of Article 15, UCMJ action and conviction by a special court-martial.  On 8 April 1971, the appropriate separation authority approved the applicant's discharge accordingly and directed the issuance of a General Discharge Certificate.

12.  On 15 April 1971, the applicant was separated with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorder.  He completed had 1 year, 8 months, and 14 days of total active service.

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

14.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  inaptitude; character and behavior disorders; and/or apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively).  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, 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 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a that provides 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 his discharge should be upgraded to honorable because he sustained some kind of debilitating mental or psychological trauma.

2.  There is no medical evidence of record and the applicant did not provide sufficient evidence to substantiate his contention that he was found to be mentally incapable and medically unqualified at the time of the discharge. 

3.  The applicant's allegation regarding to violation of his rights is also unsupported by the evidence of record.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  However, the separation authority directed discharge for unsuitability due to a character and behavior disorder.  Since there is no such diagnosis by a qualified doctor the discharge should be upgraded under the Brotzman/Nelson provisions.

5.  In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant’s records as recommended below.

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 upgrading his general discharge to honorable.

 


      ____________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)                                         AR20120001982



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ABCMR Record of Proceedings (cont)                                         AR20120001982



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