IN THE CASE OF:	  

		BOARD DATE:	    5 February 2014

		DOCKET NUMBER:  AR20130007796 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was discharged by reason of medical disability vice an undesirable discharge.

2.  The applicant states:

   a.  He is requesting his undesirable discharge be changed to an honorable discharge by reason of medical conditions, thereby lifting the statutory ban of benefits due to post-traumatic stress disorder (PTSD).  He was suffering from severe PTSD at the time of his return from Vietnam and that was the root cause of his undesirable behavior.  His PTSD made him incapable of making clear and rational decisions.  He should have been medically discharged and provided treatment and support in his readjustment to civilian life instead of being given an undesirable discharge.
   
   b.  He was issued an honorable discharge in July 1978 under the Department of Defense (DOD) Special Discharge Review Program (SDRP) but the Department of Veterans Affairs (VA) would not accept his honorable discharge.  He was denied benefits by the VA because his letter and form did not show the Army Board for Correction of Military Records (ABCMR) had changed the status of his discharge to honorable.
   
   c.  He believes at the time he was discharged the events that led to his discharge were unjust.  He and his family have paid their debt; PTSD and Agent Orange related medical conditions have cost him and his family a great deal over the years.  When he was in Vietnam, he participated in over 100 air assaults and received a Purple Heart and Bronze Star Medal. 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); DD Form 215 (Correction to DD Form 214); DD Form 215 (Correction to DD Form 214 - Certificate of Release or Discharge from Active Duty); a certificate; orders; six pages titled CDM, M.D.; five letters; and a clinical summary.

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 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 was inducted into the Army of the United States on 13 May 1968 for a period of 2 years and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His expiration of term of service (ETS) was 12 May 1970.  He was assigned to the 2nd Battalion, 39th Infantry Regiment, Vietnam, on 5 October 1968.

3.  On 27 November 1968, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order.

4.  He departed Vietnam on 24 August 1969.  He was subsequently assigned to the U.S. Army Replacement Company, Fort Dix, NJ.

5.  He was reported as absent without leave (AWOL) from his assigned unit from 21 November to 20 December 1969 and from 24 to 29 December 1969.

6.  On 9 January 1970, he was convicted by a summary court-martial of two specifications of being AWOL from 21 November to 20 December 1969 and from 24 to 29 December 1969.  The punishment imposed was forfeiture of $100 for 1 month.

7.  He was subsequently assigned to the U.S. Army Replacement Detachment, Fort Bragg, NC.

8.  He was reported as AWOL from his assigned unit on 19 January 1970.  

9.  He was reported as confined by civilian authorities from 16 to 23 June 1970.  His records contain a DA Form 268 (Report for Suspension of Favorable Actions), dated 29 July 1970, wherein he was reported as AWOL as of 20 July 1970.  It is unclear if or when he was returned to military control after 23 June 1970 and prior to 20 July 1970.

10.  On 5 March 1971, he was apprehended and returned to military control.  He was assigned to the Personnel Control Facility (PCF), Fort George G Meade, MD.

11.  On 18 March 1971, court-martial charges were preferred against him for one specification of being AWOL from 19 January 1970 to 5 March 1971.

12.  On 18 March 1971, after consulting with legal counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  

13.  In his request, he acknowledged that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

14.  The separation authority subsequently approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.  On 2 April 1971, he was discharged accordingly.

15.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 11 months, and 6 days of creditable active service with 344 days of lost time due to being AWOL and/or in confinement.

16.  Item 27 (Remarks) of this DD Form 214 showed he had lost time as follows:

* 148 days from 21 November -19 December 1969, 24 - 28 December 1969, 19 January - 12 May 1970
* 196 days subsequent to his normal ETS from 13 May 1970 - 4 March 1971

17.  This DD Form 214 also shows the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal.  

18.  There is no evidence in his available records that shows he was treated for, or diagnosed with, depression, PTSD or any other stress condition/disorder while serving on active duty.  His record is void of any evidence that shows he stated he repeatedly went AWOL due to depression, PTSD, or any other stress condition/disorder related to his military service.

19.  The applicant's available records do not show that he was diagnosed with or suffered from any medical condition while serving on active duty that limited his ability to perform in his grade/MOS or that would have warranted entry into the Army Physical Disability Evaluation System (PDES).

20.  On 13 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to an honorable discharge under the SDRP.  The DD Form 214 he had been issued was voided and he was issued a new DD Form 214 to reflect the characterization of his service as honorable with the issuance of an Honorable Discharge Certificate.

21.  The applicant's records contains this DD Form 214 wherein it shows in:

* item 9c (Authority and Reason) a series of dashes "-----"
* item 27 the entry "Upgraded under the Department of Defense (DOD) discharge review program (special), Date applied for discharge upgrade:  3 May 1977, Date discharge upgraded:  13 June 1977, Character or service prior to upgrade:  Under other than honorable conditions

22.  His records also contain a DD Form 214 wherein it shows in:

* item 9c the entry "Chapter 10 Army Regulation 635-200 Separation Program Number (SPN) 246  DOD Discharge Review Program (Special) Separation Program Designator (SPD) KCR"
* in item 27 the entry listed in paragraph 21 above is not on shown

23.  The applicant provides his DD Form 214 wherein it shows in:

* item 9c t a series of dashes "-----"
* in item 27 the entry listed in paragraph 21 above is not on shown

24.  On 13 April 1978, the ADRB conducted a second review of the applicant's upgraded discharge under the uniform standards for discharge review, in effect at that time, and voted to affirm the applicant's discharge due to his receiving a decoration in Vietnam, being wounded in action, and his satisfactory completion of an assignment in Vietnam.  

25.  The applicant provides and his records contain a DD Form 215, dated 11 July 1978, wherein it corrected item 27 of his DD Form 214 to add the entry "Discharge reviewed under the provisions (UP) Public Law (PL) 95-126 and a determination made that change in characterization of service is warranted."  

26.  His records also contain a second DD Form 215, dated 11 July 1978, wherein his DD Form 214 issued on 13 June 1977 was corrected to read as follows in:

	a.  Item 27 the entry "Discharge reviewed under the provisions (UP) Public Law (PL) 95-126 and a determination made that change in characterization of service is warranted."  

	b.  Item 9c the entry "Chapter 10, Army Regulation 635-200, SPD JFS"

	c.  Item 27 the entry "Administrative discharge - conduct triable by court-martial."

	d.  Item 27 delete the entry "Upgraded under the Department of Defense (DOD) discharge review program (special), Date applied for discharge upgrade:  3 May 1977, Date discharge upgraded:  13 June 1977, Character or service prior to upgrade:  Under other than honorable conditions."

27.  His records contain a letter, dated 19 July 1978, issued by the Office of the Adjutant General, wherein he was notified that his honorable discharge had been affirmed by the ADRB and he was provided with the DD Form 215.  He was also advised that in the future if he had any questions for the VA concerning benefits, he should provide them with his DD Form 214 and the DD Form 215.
   
28.  On 9 June 2011, based on the applicant's request, he was issued a third DD Form 215 that deleted the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal from his DD Form 214 and added the:

* Bronze Star Medal
* Purple Heart
* Air Medal with Numeral Four
* Army Commendation Medal with (3rd Award) and "V" Device
* National Defense Service Medal
* Vietnam Service Medal with four bronze service stars
* Republic of Vietnam Gallantry Cross with bronze star
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award)
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60)

29.  The applicant provides a letter, dated 12 July 1991, wherein a psychiatric consultant to the VA stated he conducted a neuropsychiatric evaluation of the applicant on that date and he stated, in part, the following:

	a.  The applicant reported he served in Vietnam for 1 year and was the recipient of several medals to include the Purple Heart and Bronze Star Medal.  That showed there was clear evidence of extreme life threatening stressors that existed during his tour of duty.

	b.  The applicant reported great difficulty sleeping, feelings of stress and worry, and some degree of depression.  He reported he had experienced countless extreme terrifying events in Vietnam.  When he returned from Vietnam, he was totally disenchanted with the government and the military and could no longer associate with the woman he had been engaged to.  He had married twice and was divorced twice.  This was characteristic of the Vietnam PTSD syndrome.

	c.  The applicant engaged in heavy drinking and smoking marijuana which was also consistent with PTSD syndrome.  He reported he had severe flashbacks when he heard helicopters or saw people of Asian descent.  He reported being jailed on a number of occasions for violent episodes for which he remained amnesic.  He once injured a police officer to the extent the police officer was placed in intensive care for internal bleeding.

	d.  He further reported that his social withdrawal and difficulty getting along with people caused him to try more than a dozen jobs in the first 2 years after Vietnam.  He had only been able to engage in construction work where he was his own boss.  He reported having flashbacks in recent months that became progressively more aggressive.  On one occasion, he threw an 11 year old child across a bar when the child approached him. 

	e.  The examining psychiatrist diagnosed him with service-connected PTSD.

30.  The applicant provides a letter, dated 20 July 2010, from the VA wherein his claim for PTSD was denied.  The letter stated his records indicated his military service from 1968 to 1971 was under dishonorable conditions for VA purposes.  His records showed he had continuous AWOL in excess of 180 days and
PL 95-126 provided that in cases involving 180 days of AWOL, the VA decision regarding a character or discharge would control the entitlement regardless of any decision made by the Discharge Review Board.  The VA could only accept an upgrade by Service Department Board for Correction of Military Records (emphasis added).

31.  The applicant provides a clinical summary, dated 8 September 2010, issued by the Princeton Veterans Center, Princeton, WV.  In the summary, the readjustment counseling therapist stated his clinical impression and level of functioning of the applicant was that:

	a.  The applicant reported being under fire frequently during his tour in Vietnam, he witnessed the horrors of war, and he has lived a life since Vietnam that was affected by what he saw and what he did.  He met the criterion for the diagnosis of PTSD and it was his opinion that he most likely developed PTSD while in Vietnam.  He was first diagnosed with PTSD in July 1991 and his problems with PTSD began before he left the Army when he went AWOL and was court-martialed.

	b.  His (the therapist's) diagnosis was based on a review of the applicant's VA clinical record, information gathered during the interview (from the applicant), and observing him on many occasions in the small community where they lived.

32.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that an honorable or general discharge is authorized.  However, at the time an undesirable discharge was normally considered appropriate.

33.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  This regulation also states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.

34.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

35.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.  The Board has been advised in similar cases that the VA often requires validation of affirmation of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits.

36.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214 and DD Form 215.  In pertinent part, it 


states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Once a DD Form 214 has been issued, do not reissue, except when two DD Forms 215 have been issued and an additional correction is required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was discharged by reason of medical disability vice an undesirable discharge.

2.  Although the applicant provides evidence that shows he was diagnosed with PTSD in July 1991, over 20 years after he discharged from active duty, the evidence of record does not show and the applicant has not provided any evidence that shows he was diagnosed with or suffered from PTSD or any medical/mental condition while serving on active duty that limited his ability to perform in his grade/MOS or that would have warranted entry into the PDES.  A diagnosis 20 years after the fact does not indicate what the Army did in his case was improper at the time.

3.  In addition, even if he had been diagnosed with PTSD at the time, it would not have excused his repeatedly going AWOL.  After previously being court-martialed for being AWOL, he again went AWOL and when he was apprehended in March 1971 court-martial charges were preferred against him for being AWOL from January 1970 to March 1971.  He subsequently requested discharge in lieu of court-martial and he was discharged accordingly in April 1971.  His initial DD Form 214 properly shows he discharged on 2 April 1971 with an Undesirable Discharge Certificate.  In view of the foregoing, he is not entitled to the requested relief.

4.  However, his discharge was subsequently upgraded in 1977 to an honorable discharge and in 1978 his honorable discharge was affirmed; three different DD Forms 215 were subsequently issued.  Therefore, based upon his award of the Purple Heart and a personal decoration for valor it would be appropriate to void the applicant's upgraded DD Form 214 and his DD Forms 215 and to issue him a new DD Form 214 that shows his honorable discharge was affirmed by the ABCMR.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* voiding his DD Form 214, dated 13 June 1977
* voiding his DD Forms 215
* issuing him a new DD Form 214 that shows his honorable discharge was affirmed by the ABCMR, reflects the information shown on the DD Form 214 he provided, and includes all awards shown on his DD Form 215, dated 9 June 2011

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was discharged by reason of medical disability.  




      _______ _   _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)                                         AR20130007796





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ABCMR Record of Proceedings (cont)                                         AR20130007796



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