IN THE CASE OF:	  

		BOARD DATE:  29 October 2013

		DOCKET NUMBER:  AR20130002749 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states:

   a.  As an 18 year old Soldier in the U.S. Army, he served honorably in combat in Vietnam as evidenced by his numerous combat awards to include the Silver Star, Bronze Star Medal with "V" Device, Army Commendation Medal with "V" Device, Combat Infantryman Badge, and two awards of the Purple Heart.  
   
   b.  He served in Vietnam with his brother and was assigned to Company C, 502nd Infantry, 101st Airborne Division, in Vietnam, when his brother was killed due to an explosion.  He had just returned to base following a chest wound and he had spent a couple of days visiting his brother before he died.  He escorted his brother's body to Delaware and he went home to meet with his parents and share the tragic news with them.  He returned to Vietnam after his 30-day emergency leave and finished his tour of duty.  Upon his return from Vietnam, he was assigned to Fort Bragg, NC.
   
   c.  From the date of his entry on active duty, at age 17, up until his discharge in April 1971, his conduct and efficiency ratings were listed as "Excellent."  He was never convicted by a court-martial nor was he subject to any Article 15 punishments.  The sole reason for his discharge was based on a psychological evaluation following an angry outburst toward the company first sergeant (1SG) during a formation on 2 March 1971.  It was determined that he was suffering from mental and behavioral disorders based on his experiences in Vietnam.  It was thought his actions could be injurious to someone in his unit and to himself.
   
   d.  Following his discharge, he has been a productive member of society.  He raised two children, worked over 40 years as a heavy equipment operator for a construction company, and served for 5 years as a Village Justice in the Town of Keeseville, NY.
   
   e.  As evidenced by the February 2008 Department of Veterans Affairs (VA) decision, the behaviors that he was exhibiting in March 1971 were symptoms of post-traumatic stress disorder (PTSD) as a result of his experiences in combat in Vietnam.  Other than one angry outburst at his company 1SG, his behavior was exemplary.  He believes his discharge should reflect that honorable service. 

3.  The applicant provides:

* Emergency Leave Orders
* Orders and certificate for the Silver Star, Bronze Star Medal, Army Commendation Medal with "V" Device, and the Purple Heart (1st Award)
* Psychiatric Evaluation
* Unsuitability discharge packet
* Standard Form 89 (Report of Medical History)
* 2008 VA Rating Decision

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 (RA), in pay grade E-1, on 4 September 1968, for 3 years, at age 17.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  
3.  On 2 January 1970, he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave from 18 December 1969 through 2 January 1970.

4.  He served in Vietnam from on or about 2 January through 26 November 1970, during three campaigns.  He was assigned to the following units:

* 23 January to 6 February 1970 – Company C, 2nd Battalion, 502nd Infantry
* 7 February to 21 April 1970 – Company L (Rangers), 75th Infantry
* 22 April to 29 May 1970 – Company C, 2nd Battalion, 502nd Infantry
* 30 May to 11 June 1970 – 249th General Hospital, Japan, in a patient status
* 18 August to 12 November 1970 – Headquarters and Headquarters Company, 101st Airborne Division (Airmobile)

5.  He provides a copy of Letter Order Number 6-217, dated 23 Jun 1970, authorizing him 30 days of emergency leave effective the same day, due to the death of his brother.

6.  He was promoted to pay grade E-5 on 16 October 1970.

7.  General Orders (GO) Number 1 were issued by Headquarters, 4th Battalion, 30th Infantry, on 16 February 1971, awarding him the Army Good Conduct Medal for service from 17 February 1969 to 16 February 1971.

8.  On 18 March 1971, he underwent a psychiatric evaluation.  The Assistant Division Psychiatrist stated, in effect:

   a.  The applicant was seen following an angry outburst with his 1SG.  The applicant had increasing difficulty since he joined the division in January 1971.  The applicant acknowledged:

		(1)  He was becoming increasingly anxious that he would lose control of himself and hurt someone.  Recently, he had been sleeping poorly.  He frequently had nightmares involving his brother's death or violent incidents in Vietnam.  He was not able to identify any specific factors in his present situation which contributed to his condition.

		(2)  He never got along with his parents.  His father was a strict disciplinarian and he had trouble getting along with him.  He was a loner and he was raised mostly by his grandparents and his aunt.  
	b.  The applicant was the fourth of eight children.  The applicant's history was presented to illustrate the stormy development as a Soldier.  As a result of that development and perhaps other constitutional factors he now had what was best described as an explosive personality disorder.  That long-standing disorder was presently complicated by the death of the applicant's brother.  His brother was killed in Vietnam last year while serving with the applicant.  The applicant stated his brother was one of the only people he had been close to.  The applicant was still grieving the loss of his brother.  That was especially demonstrated in the context of the subject's nightmares.

	c.  In summary, the applicant was a Soldier with a character disorder manifested primarily as difficulty handling anger generated in the interpersonal settings.  In Vietnam where he was more left to himself that was less a problem.  In a garrison setting that explosiveness had fewer outlets and was more incapacitating.  That problem was currently exacerbated by the grief reaction secondary to his brother's death.  On the basis of the foregoing he was unsuitable for further duty.  The recommendation was that the applicant be given an administrative discharge under honorable conditions as described in Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).

9.  On 19 March 1971, the applicant's company commander recommended the applicant be issued an honorable discharge.

10.  On 22 March 1971, the applicant's company commander notified him of the proposed action to effect his separation from the Army under the provisions of Army Regulation 635-212.  The applicant was advised of his rights.

11.  On 30 March 1971, the applicant's company commander stated the regulation authorized an honorable or general discharge.  The applicant had completed 31 months of active service and of those 31 months 11 months were in Vietnam where he served outstandingly, obtaining several military honors.  Due to the applicant's excellent performance, he recommended the applicant be discharged with honorable service.

12.  On 30 March 1971, the applicant's counsel stated that in light of the extended period of time which the applicant had served on duty (31 months), his long list of military honors, outstanding performance in Vietnam, and the number of injuries which he had sustained from combat operations, the highest form of discharge was warranted.


13.  On 31 March 1971, after consulting with counsel, the applicant acknowledged the action to separate him for unsuitability under Army Regulation 635-212.  He acknowledged he understood he could be issued a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

14.  On 16 April 1971, the applicant's battalion commander approved the applicant's discharge under the provisions of Army Regulation 635-212, with the issuance of a General Discharge Certificate.

15.  On 20 April 1971, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability with the issuance of a General Discharge Certificate.

16.  On 29 April 1971, he was discharged in pay grade E-5, under the provisions of Army Regulation 635-212 for unsuitability, with a general discharge.  He completed 2 years, 7 months, and 12 days of active service with 14 days of time lost.  His DD Form 214 lists the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Parachutist Badge
* Combat Infantryman Badge
* Army Commendation Medal with "V" Device
* Purple Heart (2nd Award)
* Silver Star
* Bronze Star Medal with "V" Device
* Army Commendation Medal

17.  There is no evidence he submitted a request to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  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.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  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.

19.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

20.  Army Regulation 635-200 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, better known as the Brotzman Memorandum was promulgated.  It required retroactive application of revised policies, attitudes, and changes in reviewing applications for the upgrade of discharges based on personality disorders. 

21.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge should be changed to an honorable discharge has been carefully considered and found to have merit.  

2.  The evidence of record shows the applicant underwent a psychiatric evaluation and was found to be unsuitable for further service due to a character disorder.  His disorder was diagnosed as long standing and complicated by the death of his brother who was killed while serving with the applicant in Vietnam.  Separation action under the provisions of Army Regulation 635-212, for suitability was initiated.  The applicant's company commander and counsel recommended the applicant be issued an honorable discharge based on 31 months of outstanding service which included 11 months in Vietnam, award of several military honors, and injuries sustained in combat operations.

3.  His administrative separation under the provisions of Army Regulation 
635-212 by reason of unsuitability was accomplished in compliance with applicable regulation in effect at the time.  However, it now appears the applicant’s overall service record and his diagnosed character and behavior disorder warrant upgrading his discharge to fully honorable as directed by the above-referenced Army memoranda.

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:

* voiding the applicant’s general discharge under the provisions of Army Regulation 635-212 which was issued on 29 April 1971 and issuing him an honorable discharge with the same date
* issuing him an Honorable Discharge Certificate from the United States Army, dated 29 April 1971, in lieu of the General Discharge Certificate he now holds



      _______ _  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)                                         AR20130002749



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ABCMR Record of Proceedings (cont)                                         AR20130002749



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