IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120002172 


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:

* an upgrade of his discharge from general to fully honorable
* correction of the narrative reason for separation to show he was medically discharged
* award of the Purple Heart for battle wounds
* correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show a secondary military occupational specialty (MOS) of security driver

2.  The applicant states, in effect, he believes he was unjustly discharged in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) since he had been diagnosed with a sociopathic personality, behavior and character disorder by the division military psychiatrist.  He further states he has claims pending with the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) and other ailments derived from his service in combat.

3.  The applicant provides:

* Certificate of Change of Name
* Portions of his various VA Rating Decisions
* Two DD Forms 214
* Numerous pages of Outpatient Medical Records
* A letter from the VA, dated 6 May 2011
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 21 September 1967 for 3 years.  He completed training, was awarded MOS 94B (Cook), and served in Korea for the period 12 April 1968 through 20 May 1969. 

3.  On 6 August 1969, he was honorably discharged for immediate reenlistment.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows he was awarded the National Defense Service Medal and the Armed Forces Expeditionary Medal.  There is no evidence which shows he was awarded the Purple Heart during this period of service.

4.  The applicant reenlisted in the Regular Army on 7 August 1969.  His DA Form 20 (Enlisted Qualification Record) contains the following information:

* Item 22 (MOSs) shows he was awarded primary MOS 94B on                    8 March 1968 
* Item 38 (Principal Duty) shows he served in MOS 94B throughout his military service
* Item 31 (Foreign Service) shows he performed duties in Alaska for the period 29 September 1969 through 1 April 1970 and that he arrived in the Republic of Vietnam on 5 May 1970
* Item 40 (Wounds) is blank  
* Item 41 (Awards and Decorations) does not show award of the Purple Heart  

5.  His records contain Special Court-Martial Order Number 5, dated 12 January 1970, issued by Headquarters Fort Wainwright, AK, which shows the applicant pled guilty and he was found guilty of being absent without leave for the period 
2 through 30 November 1969.  The sentence was adjudged on 20 December 1969 and approved on 12 January 1970.  He was sentenced to be confined at hard labor for 3 months, to forfeit $82.00 pay for 3 months, and to be reduced to the rank/grade of private/E-1.

6.  The applicant was counseled by his chain of command on numerous occasions for failure to report to duty, a negative and disrespectful attitude towards superiors, and unsatisfactory duty performance.

7.  On 20 September 1970, the applicant's unit commander notified him that he was recommending his discharge under the provisions of Army Regulation     635-212 by reason of unsuitability.  On 22 September 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge and he did not submit a statement on his behalf.

8.  The applicant's record contains a report of psychiatric evaluation, dated 22 September 1970.  This form shows the applicant underwent a psychiatric evaluation rendered by a military physician as part of the pre-separation process.  

	a. The examining physician presented a diagnosis of a character and behavior disorder, severe, chronic, manifested by authority conflict, disregard for social and moral codes of behavior, passive obstructionism, and drug abuse.  It was determined that routine military duties were a stressor and that his impairment for further military duty was severe.  It was further determined his personality disorder existed prior to military service.

	b.  The evaluation found the applicant met the retention standards and that there was no psychiatric disease or defect which warranted disposition through medical channels.  The applicant was psychiatrically cleared for any administrative or judicial action deemed appropriate by the command.  

	c.  The evaluation further stated if administrative separation was implemented, the decision as to whether the applicant should be eliminated as unfit or as unsuitable should be based on an evaluation of his conduct and not on the psychiatric diagnosis rendered.


9.  His records also contain Special Court-Martial Order Number 71, dated          8 October 1970, issued by Headquarters, 1st Brigade, 101st Airborne Division (Airmobile), which shows the applicant was found guilty of wearing civilian clothes in the battalion area.  The sentence was adjudged on 22 September 1970 and approved on 8 October 1970.  He was sentenced to be reduced to the rank/grade of private/E-2.

10.  The separation authority directed the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unsuitability with a general discharge.

11.  On 12 October 1970, the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 10 months, and 4 days of total active service with 78 days of lost time.  His DD Form 214 also shows:

   a.  he was assigned separation program number 264 (unsuitability – character and behavior disorder); and
   
   b.  item 24 of this DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device 1960.

12.  There is no evidence which shows he was awarded the Purple Heart during this period of service.

13.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not list the applicant's name as a casualty.

14.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

15.  On 31 March 1980, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied.  

16.  His service medical records are not available for review with this case; however, there is no indication in his military personnel records which shows he suffered from PTSD or an illness or an injury that rendered him unable to perform the duties required of his grade or MOS.

17.  The applicant submitted a VA rating decision, dated 14 February 2011, that shows the VA awarded him service-connected disability compensation effective 25 June 2007 for:

* PTSD and Major Depressive Disorder with psychotic features, 50%
* Limited extension, right knee, 50% 
* Degenerative joint disease, right knee, post surgical scar, 10%
* Post fracture of the metacarpophalangeal and interphalangeal joint of the right thumb, with residual scar, 10%

18.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based on the individual's entire record.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

19.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-212.  It 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 a personality disorder (formerly known as character and behavior 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, 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.

20.  A second memorandum, dated 8 February 1978, 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.  The conviction by a 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.

21.  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.

22.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the Purple Heart.  It states the Purple Heart is awarded to members wounded in action and states that in order 
to award the Purple Heart, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.

23.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It stated, in pertinent part, that item 23 shows the primary MOS code number and title.

DISCUSSION AND CONCLUSIONS:

1.  Although he contends he should be entitled to an upgrade of his discharge and to change the narrative reason of his discharge to a medical discharge, he did not provide evidence of an unfitting medical condition at the time of his discharge.  There is no evidence in his records and he did not provide any substantiating evidence which shows he was medically disqualified for retention or separation due to a diagnosis of PTSD.  Nowhere in his records does it show he suffered an illness or an injury which rendered him unable to perform the duties required of his grade or MOS.

2.  Consideration of an upgrade of his discharge under the provisions contained within the Brotzman and later Nelson memoranda was contemplated; however, his record revealed a disciplinary history which included multiple guilty findings in more than one court-martial proceeding.  His behavior and failure to respond to counseling led his chain of command to initiate separation action against him. The applicant’s record of indiscipline clearly shows his quality of service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge under these provisions.
3.  His administrative separation was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

4.  With regard to award of the Purple Heart, there is insufficient evidence to support this contention.  By regulation, in order to support award of the Purple Heart the member must have been wounded in action and there must be evidence the wound for which the award is being made was received as a result of enemy action; the member must have required medical treatment by medical personnel; and this medical treatment must have been made a matter of official record.

5.  The applicant's service in Korea and the Republic of Vietnam is not in question.  Additionally, the applicant's sincerity is not in question.  However, his record contains no medical treatment records or other documents which confirm he was wounded as a result of enemy action or treated for a combat-related wound or injury while serving in the Republic of Vietnam.  The regulatory burden of proof necessary to support award of the Purple Heart has not been met; therefore, it would not be appropriate to award the applicant the Purple Heart.

6.  With regard to awarding the applicant a secondary MOS of security driver, the evidence of record shows the applicant was trained in and held MOS 94B throughout his military service.  There is no evidence in his records and he did not provide any evidence that shows he was trained in or held any other MOS.   

7.  Therefore, in view of the foregoing evidence, he is not entitled to the 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)                                         AR20120002172



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ABCMR Record of Proceedings (cont)                                         AR20120002172



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