IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20120006241 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, through a court remand:

* reconsideration of the applicant's prior requests for a discharge upgrade to fully honorable (HD), or in the alternative, to, in effect, affirm the general under honorable conditions (GD) discharge he already has
* a formal hearing before the Army Board for Correction of Military Records (ABCMR).

2.  Counsel states the applicant:

* voluntarily enlisted and served valorously in Vietnam
* received a discharge upgrade, but is denied Department of Veterans Affairs (DVA) benefits
* has been diagnosed with post-traumatic stress disorder (PTSD) as a result of his Vietnam service

3.  Counsel further states:

* the ABCMR, in 2006, failed to waive the 3-year statute of limitations and denied the application for a discharge upgrade
* if the application is deemed untimely, the statute of limitations should be waived in the interest of justice
* new information is being provided
* the applicant's discharge should be upgraded based on the current understanding of PTSD, and to remove an injustice based on the totality of the applicant's life and circumstances

4.  Counsel provides:

* Order of Remand
* a 36-page Brief for Petitioner
* 7 Exhibits (A through G)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the two previous considerations of the applicant's case by the ABCMR in Docket Numbers AR20070003685 on 21 June 2007 (Case #1) and AR20050008711 on 18 April 2006 (Case #2).

2.  The applicant's new evidence includes:

* a psychiatric report, dated 3 March 2012, of evaluations conducted on 11 January and 23 February 2012
* a sworn statement from the applicant, dated 8 November 2011
* a sworn statement from the applicant's brother, dated 9 November 2011
* a sworn statement from the applicant's former commanding officer (CO), dated 29 October 2011
* a sworn statement from a DVA mental health counselor, dated 1 November 2011
* excerpts from the applicant's DVA medical records
* a newspaper article

3.  The psychiatric evaluation consisted of administering 2 assessment tools and reviewing the results, as well as reviewing the applicant's military, medical, psychiatric and DVA records.  It was concluded:

* the applicant suffers from PTSD
* the PTSD results from his Vietnam experiences
* his PTSD "…would also have been sufficient to cause him to act in a way in which led to his discharge status…"


4.  The applicant indicates in a sworn statement:

* he was trained as an infantryman at Fort Gordon, GA
* while at Fort Gordon, he was court-martialed for not reporting back on time from an authorized leave
* following completion of all training, he was ordered to Vietnam, arriving in-country on or about 22 January 1969
* he was assigned to the 9th Infantry Division and during in-country orientation, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for missing a class
* following orientation, he was further assigned to Company C,
2nd Battalion, 39th Infantry Regiment (C/2/39 Inf) located at Fire Support Base Schroeder in the Mekong Delta region of Vietnam
* he was immediately sent out on combat missions
* Soldiers were frightened and would harm themselves to avoid combat
* on 17 February 1969, he engaged the enemy and used a hand grenade to neutralize a bunker; he was awarded a Bronze Star Medal with "V" Device and also a Combat Infantryman Badge
* on a subsequent patrol, he was walking in a canal directly behind his company CO, a lieutenant from his home state of Connecticut, when the lieutenant, turning to offer him a hand up a slippery bank, was shot 5 times in the chest by a sniper
* this event caused a change in his mental condition and, although he continued to go out on patrols, he became disoriented and confused
* on 26 March 1969, he finally reached his breaking point and refused to go out on patrol
* he was court-martialed and convicted of failing to obey an order
* after his conviction, he again refused to go to the field and he was administratively discharged

5.  The applicant's brother states:

* when the applicant received his induction notice, he "jumped at the chance to serve his country"
* he was anti-drug and patriotic before leaving for Vietnam
* when he returned, he was a ravaged, haunted person addicted to drugs and alcohol
* his former friends shunned him for participating in the Vietnam War
* PTSD ruined his brother's life


6.  Counsel provides a statement from the applicant's former CO, a retired infantry colonel.  This individual was the applicant's commander during training at Fort Gordon; he did not serve with the applicant in Vietnam.  He states:

* he was commissioned a second lieutenant upon graduating from the United States Military Academy in 1965
* he served in Vietnam as a platoon leader from January 1967 to January 1968 and he earned the:

* Silver Star
* Bronze Star Medal with "V" Device
* Bronze Star Medal for meritorious service
* Soldier's Medal
* Purple Heart
* three Legions of Merit
* Army Commendation Medal
* Combat Infantryman Badge

* he has no first-hand knowledge of the applicant's service in Vietnam
* he had no understanding of PTSD while he was serving in Vietnam
* now, 46 years later, he has empathy for the applicant

7.  A mental health counselor states:

* she works for the West Haven (CT) Veterans Center and, before that, for the DVA
* she began working with the applicant in 2003
* the applicant has service-connected PTSD by the DVA
* he was awarded the Bronze Star Medal with "V" Device for valor
* he participated in heavy fighting and witnessed many deaths
* he relates his lieutenant being killed by 5 rounds from a sniper
* this event overwhelmed him with fear, anxiety, and helplessness
* he then refused to participate in further combat
* his discharge was upgraded, but later revoked
* receiving an upgraded discharge would confirm he proudly served

8.  The record shows the applicant was discharged on 4 August 1969 under the provisions of Army Regulation 635-212 for unfitness due to an established pattern of shirking with an Under Other Than Honorable Conditions Discharge Certificate.

9.  The record also shows in a personal appearance before the Army Discharge Review Board (ADRB) on 10 August 1972 the applicant explained his refusal to participate in combat as follows:

First of all, I can't say I am a conscientious objector.  I am not.  But in this particular war - - I really don't know all there is to know about it.  It is a complex war, as everybody knows.  But I sat down and asked myself if I should give it any more of my support.  It wasn't really clear to myself or my comrades over there what we were really fighting for.  A lot of people over there don't even know.  I know I didn't.  I didn't understand fully what I was actually fighting for.  I understand it to a degree.  But under the circumstances I didn't feel that I should give the war any more of my support, because I am against the Vietnam War.

10.  The ADRB, on 1 June 1977, upgraded the applicant's discharge to a GD under the SDRP; however, on 3 August 1978, the ADRB notified him that his discharge was not affirmed by that board.  He was informed the character of his upgraded discharge would not change; however, he would not be automatically eligible for DVA benefits.

11.  The DVA, on 30 November 2004, granted entitlement to medical care eligibility for a confirmed diagnosis of PTSD.

12.   The applicant provides a 3 March 2012 report of psychiatric evaluation prepared at the request of his attorneys.  In the report, Dr. Westphal concludes that the applicant’s change from a heroic, patriotic Soldier to an individual unfit for military service "can only be explained by the trauma he witnessed and reacted to with PTSD symptoms."  Dr. Westphal states that "the experience of the events that caused [applicant's] PTSD would have been sufficient to cause him to act in a way which led to his discharge status."  Dr. Westphal did not provide curriculum vitae to allow the Board to assess his credentials in the field of forensic psychiatry.  There is no evidence in the record that Dr. Westphal is considered an expert in the field of forensic psychiatry or has ever been accepted by a court of law as an expert.

13.  The report indicates the applicant considered his first AWOL during training as "… a little bit of a hiatus."  Furthermore, as discussed below, one of the two incidents, the death of a lieutenant, that the applicant described as being "particularly horrifying" cannot be confirmed.  The report indicates the applicant also stated he began to drink heavily and smoke pot.



14.  On the chance the applicant was not talking about his company commander, but was referring instead to the death of his platoon leader (who would have been a lieutenant), a review of National Archives Vietnam War casualty data shows during 1969 seven lieutenants from Connecticut were killed in action, none of whom were assigned to the applicant's unit or even to the 9th Infantry Division.

15.  A review of 9th Infantry Division casualties shows that Captain O.T.S. was the company commander of C/2/39 Inf and he was killed in action on 18 May 1969.  The captain was from Baltimore, MD.

16.  The 9th Infantry Division records show that CPT V.N.H. replaced CPT O.T.S. and processed the applicant for administrative discharge on 23 July 1969 under the provisions of Army Regulation 635-212 for unfitness.  On 4 July 1969, the applicant was psychiatrically cleared for whatever action deemed appropriate by the command.

17.  On 16 September 1974, President Gerald R. Ford announced the Ford Clemency Program (FCP), which provided Selective Service violators and military absentees the opportunity to turn themselves in, take an oath of allegiance, and agree to perform alternative service in exchange for a dismissal of the charges.  The Clemency Discharge (CD) replaced the Undesirable Discharge (UD) upon completion of the alternative service in the case of military absentees.

	a.  A Presidential Clemency Board (PCB) was established to hear the appeals of veterans with UDs, Bad Conduct Discharges (BCDs), or Dishonorable Discharges (DDs) for absence-related offenses.  Upon the completion of alternative service, these discharges could be upgraded to CDs.

	b.  Three classes of veterans or service members were affected by the FCP, which was in effect from 16 September 1974 to 31 March 1975:

* military absentees who returned and received UDs in exchange for agreeing to perform alternative service to earn CDs
* veterans with UDs, BCDs, and DDs who applied to the PCB and were either given CDs and a pardon or had the receipt of them conditioned on the performance of alternative service
* applicants to the PCB who were affected by the 19 January 1977 directive of President Ford that veterans who had been wounded in combat or decorated for valor be given GDs, absent "compelling circumstances to the contrary"

18.  In his first week in office, President Jimmy Carter issued a blanket pardon for all persons with pending Selective Service Act violations or those who could possibly be so charged.  In late March 1977, DoD announced that persons with GDs and UDs (and some persons with CDs) issued between 4 August 1964 and 28 March 1973 could apply for a simplified review of their discharges under the liberalized standards established by the Special Discharge Review Program (SDRP), which lasted from April to September 1977.

19.  Public Law 95-126, dated 8 October 1977, required that all future discharge upgrading of anything less than a GD be conducted using published, uniform standards and procedures, if a veteran were to receive DVA benefits.  All UDs and CDs upgraded to HDs or GDs under the two 1977 programs were to be reviewed again (re-reviewed), using the published criteria when they became available.  Only discharges affirmed under the uniform standards and procedures were entitled to DVA benefits.  In the interim, there was to be a 6-month grace period for persons receiving veterans benefits as a result of the 1977 upgrade.

20.  Army Regulation 15-185, the regulation under which the ABCMR operates, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests the applicant's discharge be upgraded to an HD, or in the alternative, an affirmation of his GD.  Counsel further requests a personal appearance hearing before the ABCMR.

2.  Regarding counsel's requests:

	a.  By regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant through counsel is sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

	b.  The applicant already possesses a GD, albeit one which was not affirmed by the ADRB.  As of 30 November 2004, he receives DVA medical benefits related to PTSD.

3.  The applicant served in Vietnam as an infantry Soldier.  He participated in combat operations from on or about 1 February 1969 to on or about 26 March 1969.  He was awarded the Combat Infantryman Badge and he was cited for heroism on 17 February 1969.

4.  The statement submitted by Dr. Westphal states the applicant "initially excelled in the Army."  However, the record reflects otherwise.  The record shows that by the time applicant was assigned to combat duties he had already been convicted by a court-martial and received NJP for being absent without leave (AWOL).  Receiving NJP and being convicted by a court-martial during training are not evidence of excellent initial performance in the Army.  The applicant’s last CO indicated the applicant was in repeated trouble because of disrespect to supervisors prior to his assumption of command, and that he rotated through three different platoons and supervisors and his performance was unsatisfactory in each.  The Board, however, notes that during the events for which the applicant received the Bronze Star Medal with "V" Device, he conducted himself honorably and executed his Soldier duties with valor.

5.  Beyond the daily stress associated with combat, the event to which he alludes as being most stressful and disturbing, and which led directly to his refusal to participate in combat, is not supported by the facts.  The applicant claims his CO, an unnamed lieutenant from Connecticut, was shot dead while grasping his hand to help him out of a canal.  This would have occurred sometime between 17 February 1969, when he was cited for award of the Bronze Star Medal, and 26 March 1969, when he refused to conduct combat operations; however, the Board analyst was unable to locate a casualty record directly corresponding to the applicant’s claim.

6.  Casualty records for the 9th infantry Division do show that Captain O.T.S. from Baltimore, MD commanded C/2/39 Inf during the first part of the applicant's tenure.  Records show this officer was killed in action on 18 May 1969 under completely different circumstances than those described by the applicant.  This is at odds with the applicant's account of the major traumatic event of his Vietnam service.

7.  The applicant made no mention of the above incident in his 1972 appearance before the ADRB.  At that time, the applicant attributed his refusal to conduct combat operations to his nonsupport of the war.  During that hearing, the applicant also stated he had a history of resistance to authority and he found that the Army was the type of environment he was trying to get away from.



8.  The other evidence provided in support of the applicant's request for a discharge upgrade is not convincing for the following reasons:

* his former commander knew him as a trainee at Fort Gordon; he was not in Vietnam with the applicant
* his brother alludes to drug and alcohol addiction and ascribes it and the applicant's personality changes to PTSD; his personality changes just as likely could have been caused by the drug and alcohol addiction
* the mental health counselor ascribes his PTSD to the death of his CO, an event which cannot be confirmed by the record
* the psychiatrist met the applicant and administered tests and reviewed DVA documents and concludes "to a reasonable degree of medical certainty" has PTSD as a result of military service, and that his related combat experiences, now subject to question, would have been sufficient to cause him to act in a way that led to his discharge status

9.  The applicant has failed to present convincing evidence to establish that his misconduct 43 years ago was a result of PTSD or that his discharge is improper.

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant and counsel'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 to amend the decisions of the ABCMR set forth in Docket Number AR20050008711, dated 18 April 2006 and Docket Number AR20070003685, dated 21 June 2007.



      __________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)                                         AR20120006241



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ABCMR Record of Proceedings (cont)                                         AR20120006241



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