IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120006165


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 previous Army Board for Correction of Military Records (ABCMR) decisions regarding his requests for award of the Purple Heart for a shell fragment wound he contends he received in the Republic of Vietnam, and correction of his DD Form 214 (Report of Separation from Active Duty) to show this award.

2.  As a new issue, he requests upgrade of his discharge characterization, from under honorable conditions (general) to honorable.

3.  The applicant states:

* he still had the shell fragment wound on his nose when he returned from service in the Republic of Vietnam
* during his service in the Republic of Vietnam, while driving a vehicle near Cam Ranh Bay, he was hit by small arms and mortar fire
* he was hit on his nose and treated at the aid station in Nha Trang
* after treatment, his commander failed to submit, or lost, the necessary paperwork to award him the Purple Heart
* the normal statutory time limits pertaining to the award of military decorations do not apply to requests for the Purple Heart
* he waived consideration of his case by, and personal appearance before, a board of officers upon his separation; however, he didn't waive his right to medical and mental evaluations accorded him in Army Regulation    635-200 (Personnel Separations – Enlisted Personnel)
* since his return from the Republic of Vietnam he has suffered from post-traumatic stress disorder (PTSD); however, he was never evaluated for PTSD while on active duty 

4.  The applicant provides:

* DD Form 214
* memorandum, issued by Headquarters and Headquarters Battery, Staff and Faculty Battalion, Field Artillery School Brigade, Fort Sill, OK, dated   5 December 1975, with 1st endorsement
* Standard Form (SF) 88 (Report of Medical Examination), dated 24 June 1965
* SF 89 (Report of Medical History), dated 24 June 1965
* SF 88, dated 19 March 1968
* SF 88, dated 20 October 1969
* SF 89, dated 29 October 1969
* SF 88, dated 4 December 1975
* SF 89, dated 4 December 1975
* SF 519 (Clinical Record – Radiographic Reports), dated 26 June 1973
* SF 514 (Clinical Record – Laboratory Reports), dated 10 October 1975
* SF 507 (Clinical Record – Report of Continuation Form), dated 27 January 1977
* an extract of his Department of Veterans Affairs (VA) Rating Decision, dated 22 March 1977
* an extract (page 2) of his VA Rating Decision, undated
* SF 519-A (Radiographic Report), dated 23 August 1985
* SF 509 (Medical Record – Progress Notes), dated 22 August 1985
* SF 509, dated 4 November 1985
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* State of Texas, Bexar County, 225th Judicial District Court Decree Changing Name of Adult, dated 9 December 1977
* an undated letter from a social worker at the Vet Center, San Antonio, TX

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.  With respect to the issue of the Purple Heart:

   a. This issue was previously considered by the ABCMR in Docket Number AR1999020902, in which the applicant requested award of the Purple Heart.  This case was originally considered by the ABCMR on 5 August 1999.  It was reconsidered by the ABCMR in Docket Number AR2001063254, on 19 March 2002. 

   b. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it contains new evidence or a new argument that was not previously considered.  

   c. The staff of the ABCMR reviewed his application and determined his request did not meet the criteria for reconsideration, as stipulated above, since:

* his request was previously reconsidered
* he did not show, when considering his submitted evidence and the evidence of record, he met the regulatory criteria for award of the Purple Heart

   d. Accordingly, this portion of his request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 28 June 1965.  He completed his initial entry training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewmember).

4.  On 9 June 1968, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was credited with the completion of 2 years, 11 months, and 12 days of net active service during this period of enlistment.   

5.  On 21 October 1969, he again enlisted in the Regular Army.  He completed training and was awarded MOS 96B (Intelligence Analyst).

6.  Item 31 (Foreign Service) of his DA Form 20 shows he served in the Republic of Vietnam from on or about 23 September 1970 to on or about 22 September 1971.  

7.  On 28 July 1971, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he was credited with the completion of 1 year, 9 months, and 8 days of net active service during this period of enlistment.   

8.  On 29 July 1971, he reenlisted in the Regular Army.

9.  On 14 August 1975, he was promoted to the rank/grade of staff sergeant (SSG)/E-6.  

10.  On 12 September 1975, he accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using an unauthorized meal card with intent to defraud, on or about    8 September 1975.  His recommended punishment of reduction to the rank/grade of sergeant (SGT)/E-5 was suspended for a period of 6 months.

11.  On 19 November 1975, he was relieved of his duties at the Office of the Security Officer, U.S. Army Field Artillery School, Fort Sill, OK, for:

* below-standard duty performance
* a steadily declining attitude toward job responsibilities and the military, in general, to the degree of casting an unfavorable reflection upon himself and the office to which he was assigned
* rampant personal problems that resulted in frequent tardiness from his military duties 

12.  On 4 December 1975, in anticipation of his upcoming separation, he underwent a separation physical, in which he completed an SF 88 and SF 89, as well as a Report of Mental Status Evaluation.  This form indicated his behavior was normal, he was fully alert and fully oriented, his mood was level, this thought process was clear, his thought content was normal, and his memory was good.  Additionally, the examining official stated the applicant did not suffer from significant mental illness, was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and possessed the mental capacity to understand and participate in board proceedings.

13.  On 5 December 1975, his immediate commander notified him of his intent to take action to effect his separation from the Army under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability.

14.  On 8 December 1975, he acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-200.  He waived consideration of his case by, and personal appearance before, a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.

15.  He also indicated he understood that he might expect to encounter substantial prejudice in civilian life if an under honorable conditions (general) discharge was issued to him.  

16.  On 9 December 1975, his suspended punishment of reduction to the rank/grade of SGT/E-5 was vacated, due to his tardiness from his military duties and his relief from duty.

17.  On 10 December 1975, his immediate commander initiated elimination action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability, due to the change in the applicant's attitude toward the military and the U.S. Army, displayed lack of motivation, continued tardiness, and his inability to expend effort constructively toward the completion of assigned tasks.  

18.  On 11 December 1975, his intermediate commander concurred with the immediate commander's recommendation and recommended approval of the applicant's discharge for unsuitability.

19.  On 17 December 1975, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  

20.  On 22 December 1975, he was accordingly discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an under honorable conditions character of service.  It further shows he was issued a General Discharge Certificate, at the completion of 9 years, 1 month, and 14 days of total active service.  

21.  His record is void of any documentation that shows he was diagnosed with PTSD or any other mental condition during his period of military service.
22.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

23.  He provides an SF 88 and SF 89, dated 4 December 1975, which show he was afforded a separation physical prior to his discharge.

24.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an honorable discharge was considered appropriate.

25.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge characterization, from under honorable conditions (general) to honorable, was carefully considered; however, there is insufficient evidence to support his request.

2.  He contends he was not afforded medical or mental evaluations prior to his separation from service; however, he included as evidence 2 forms completed during his separation physical.  Therefore, this contention is unfounded. 

3.  He further contends that since his return from the Republic of Vietnam he has suffered from PTSD and he was never evaluated for PTSD while on active duty.  His record is void of any documentation that shows he was diagnosed with, or suffered from, PTSD or any other mental condition during his period of military service.  

4.  His duty performance was sub-standard, as evidenced by his NJP, tardiness and relief from assigned duties, and his general poor attitude toward the U.S. Army.  Accordingly, his chain of command initiated separation action against him.

5.  The available evidence shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His under honorable conditions (general) discharge is commensurate with his overall record of military service.

6.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20110003129



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ABCMR Record of Proceedings (cont)                                         AR20120006165



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