IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20120023019 


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 a general discharge.

2.  The applicant states:

* prior to his Vietnam service he had excellent service
* Post-Traumatic Stress Disorder (PTSD) issues were present during his service in Vietnam that led to the accident and his court-martial

3.  The applicant provides:

* Self-authored statement, dated 1 March 2010
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 26 April 1967 and 3 April 1970
* DD Form 215 (Correction to DD Form 214), dated 14 September 2001
* Letter from a former PTSD counselor, dated 6 January 2010
* Washington Times article titled "Military misconduct may be sign of PTSD," dated 12 January 2010
* Certificate by a psychiatrist at the Mental Hygiene Consultation Service, Fort Dix, NJ, dated 25 February 1970
* Discharge summary from the Department of Veterans Affairs (VA), dated 30 July 2008


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's military records are not available for review.  However, this case is being considered using reconstructed records that primarily consist of the records provided by the applicant.

3.  His DD Form 214 for the period ending 26 April 1967 shows he enlisted in the Regular Army on 27 April 1966 for a period of 3 years.  He was awarded military occupational specialty 36C (lineman).  On 26 April 1967, he was honorably discharged for the purpose of immediate reenlistment.

4.  His DD Form 214 for the period ending 3 April 1970 shows he reenlisted on 27 April 1967 for a period of 6 years.  He served as a radio teletype operator in Vietnam from 30 July 1967 to 2 March 1969.

5.  He provides a psychiatric evaluation, dated 25 February 1970, that shows he was diagnosed with an emotionally unstable personality, chronic, severe; manifested by impulsive behavior and poor judgment.  He was found mentally responsible and he was psychiatrically cleared for any action deemed appropriate by his command.  The certificate states:

* he is presently serving a 2-month sentence for a 3 1/2 month AWOL offense from which he surrendered
* his military record also included two Article 15s for AWOL offenses and a general court-martial conviction for negligent homicide resulting from a truck accident in Vietnam
* he received psychiatric attention in Vietnam when he opened up with an M-16 inside a tent in a noncombat situation

6.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 for the period ending 3 April 1970 shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability) with a separation program number (SPN) of 28B, indicating discharge for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 9 months, and 29 days of total active service with 397 days of time lost.

7.  There is no evidence in the available record that shows the applicant was diagnosed with PTSD or any other mental condition prior to his discharge.

8.  He provides a self-authored letter, dated 1 March 2010, wherein he states:

	a.  he was assigned to Korea in 1966 and he received very good ratings.  He reenlisted and volunteered for Vietnam.  They were under constant rocket attacks by the enemy and when the enemy would hit their ammunition dump he could hear shrapnel flying right by his ears.  He had hallucinations and he was sent to the doctor.  The doctor said nothing was wrong with him.

	b.  while home on leave from Vietnam he saw his cousin's body, who was killed in Vietnam.  Upon returning to Vietnam he felt very different about himself and he did not want to return home.

	c.  on 24 December 1968, he was told by his noncommissioned officer-in-charge to drive some civilians back to Pleiku.  While driving the civilians he was involved in a crash.  When he returned to his unit they said he took the truck without permission.  At his Article 32 hearing in Vietnam the psychiatrist testified he saw him and he was released to duty.

	d.  he received a general court-martial and he was sentenced to 1 year and he spent 3 months in the stockade in maximum security.  He contends it was not fun being under attack and not being able to get out of his cell fast enough.  He was then sent to Fort Leavenworth, KS for the remainder of his sentence, which was reduced to 6 months.

	e.  he stayed there for about 2 months and was given partial pay and sent home on leave.  He was then stationed at Fort Meade, MD where he did not receive pay or even partial pay because finance told him they did not have his pay records.  For 2 months he had to rely on money from home that was sparse and he got tired of having no money, so he went absent without leave (AWOL).  He then turned himself in and went to Fort Dix where he received his discharge.

	f.  his mental hygiene consultation, dated 25 February 1970, states "DIAGNOSIS:  Emotionally unstable personality, chronic, severe; manifested by impulsive behavior and poor judgment.  Stress: Moderate.  Military duty in a combat zone.  Predisposition: Moderate.  Prior history of similar difficulties.  Impairment for future military duty: Marked LOD (line of duty): No EPTS (existed prior to service)."

	g.  shortly after arriving in Vietnam he realized that he had mental problems, but at that time he did not understand that the symptoms he was having was because of PTSD directly related to his time spent in the Army.  These mental problems led up to his actions in Vietnam, the truck accident, and the rest of his time in service and until this present day.  After his release from the Army, he has suffered severely due to his PTSD and other medical problems that are related to his time in the Army.

9.  He also provides an undated letter from his former PTSD counselor who states:

	a.  by today's standards for PTSD diagnosis, the applicant clearly had significant traumas.  His behavior of reenlisting after he felt he could not adapt to stateside living, use of alcohol, death-challenging behaviors, sleep disorders, and social isolation would all be easily recognizable symptoms today.

	b.  the VA acknowledged his disability of PTSD.

	c.  in 1968, the diagnosis of PTSD did not exist.  There was the "Vietnam" syndrome, but that was applied to veterans who had returned to society.  It is reasonable to assert that many young Soldiers like the applicant suffered both
in-country where they were less likely to be identified, chalked up to handling the war.

	d.  the applicant was completing a second tour of service and had been drinking on the day of the incident.  When appearing intoxicated he was sent to his bunk, slept for several hours, and then volunteered to take the villagers back to their home.  His behavior at that moment must have been reasonable enough that his commanding officer allowed him to drive the truck.  He has expressed remorse for the accidental deaths of the villagers who were thrown from the back of the open truck.  Because the investigation found the history of drinking that day, it was presumed to be the causative factor and may have contributed to the situation.  However, no one reviewed his personal history nor psychologically examined him to determine if there were any other factors affecting his actions that day.

	e.  he is certain the applicant likely had a dissociative episode based on some major stressors:  he was to leave the country in a day or two; and he was having difficulties being at base camp and not in the field, and survivor's guilt as well as the backdrop of the Christmas/New Year's holiday.

	f.  the applicant served not only the time adjudicated, but the decades afterward suffering guilt based on assumptions that do not meet today's standards.  He deserves to have his discharge upgraded as he served honorably in Vietnam until psychological events occurred that he had no control of and suffered greatly as a result.  He suffered from PTSD both in-country and during the unfortunate events of 24 December 1968.  His history, traumatic events, and actions support a diagnosis of PTSD.  It certainly was not his fault that PTSD had not been developed and refined or available to the investigation in 1968.

10.  He further provides a discharge summary from the VA, dated 2008, that shows he was diagnosed with chronic PTSD (military and Vietnam).

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

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.

	a.  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.

	b.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends PTSD issues were present during his service in Vietnam.  However, there is no evidence that shows he was diagnosed with PTSD (or any other mental condition) prior to his discharge on 3 April 1970.  In addition, he reported the psychiatrist who evaluated him in Vietnam said nothing was wrong with him.  A near-contemporaneous psychiatric evaluation, dated April 1970, indicated only a personality disorder, not a ratable mental condition.

2.  In the absence of evidence to the contrary, it must be presumed his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed the authority and reason for his separation were commensurate with his overall record of service.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20120023019



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ABCMR Record of Proceedings (cont)                                         AR20120023019



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