IN THE CASE OF: 

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130008938 


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 requests defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant be awarded a medical retirement with no less than a 70 percent (%) disability rating and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 9 November 1972 in:

	a.  item 11a (Type of Transfer or Discharge) to show he was retired vice discharged.

	b.  item 11c (Reason and Authority) to show he was retired for medical reasons vice discharged in accordance with (IAW) Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 10 (for the good of the service - in lieu of trial by court-martial).

	c.  item 13a (character of service) to show his characterization of service as honorable vice under honorable conditions (general).

	d.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) to add the Cold War Victory Medal (i.e., Cold War Recognition Certificate).

2.  Counsel states the applicant was discharged IAW Army Regulation 635-200, chapter 10.  His discharge resulted in a general under honorable conditions characterization of service, which is inappropriate for the following reasons:

* He suffered from post-traumatic stress disorder (PTSD) during and after his three combat tours in Vietnam
* He was being treated and assessed for mental and emotional problems in the years prior to his final discharge from service
* His mental and emotional problems, which stemmed from his PTSD, made further service in the Army impossible
* At the time of his discharge, medical professionals lacked the current understanding of PTSD
* By today's standards he would have been evaluated for a Medical Evaluation Board (MEB)/Physical Evaluation Board(PEB), assigned to a warrior transition unit, and processed for medical retirement IAW Army Regulation 635-200
* His PTSD grew in severity, resulting in many secondary effects to his health; therefore, the Department of Veterans Affairs (VA) awarded him a 100% disability rating
* IAW Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-31 and 3-32, in effect at the time of his discharge, he should have been processed for medical treatment due to the incapacitation caused by his mental condition

3.  Counsel provides a table of contents which includes evidence listed in tabs
A-I below.  The evidence provided contains over 500 pages. 

* Tab A - (26 page) Supplemental statement
* Tab B - (4 pages) Timeline
* Tab C - (6 pages) Army Board for Correction of Military Records (ABCMR) Docket Number AR2002076652, dated 16 December 2003
* Tab D - (15 pages) Awards and commendations
* Tab E - (57 pages) Service records
* Tab F - (68 pages) Service medical records
* Tab G - (79 pages) Records from inpatient psychiatric treatment at the VA medical office in Waco, TX 
* Tab H - (200 pages) Other inpatient records 
* Tab I - (126 pages) VA medical documentation

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 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 Cold War Victory Medal, the correct name is the Cold War Recognition Certificate.  

	a.  The Cold War Recognition Certificate is not governed by the
provisions of Army Regulation 600-8-22 (Military Awards) and, as a result,
is not shown on a discharge document.  In accordance with section 1084 of
the Fiscal Year 1998 National Defense Authorization Act, the Secretary of
Defense approved awarding the Cold War Recognition Certificate to all
members of the Armed Forces and qualified Federal government civilian
personnel who faithfully and honorably served the United States anytime
during the Cold War era, which is defined as 2 September 1945 to 26 December
1991.  

	b.  He may submit a request in writing to Commander, U.S. Army Human
Resources Command, ATTN:  AHRC-PDP-A, Department 480, 1600 Spearhead Avenue, Fort Knox, KY  40122-5408.  Based on this information, the applicant's
request for the Cold War Recognition Certificate will not be discussed
further in this Record of Proceedings.

3.  The applicant was born on 6 February 1947.  On 27 February 1964, at the age of 17, and with parental consent, he enlisted in the Regular Army for a period of 3 years.  For most of his service he held and worked in supply military occupational specialities.

4.  Counsel provided a Standard Form (SF) 600 (Health Care Record-Chronological Record of Medical Care) which shows he received medical treatment on 12 November 1964.  He reported that he "just feels bad "all over.”  The medical authority stated that the applicant's complaints were very vague and that he "seems depressed." 

5.  His record contains a DA Form 20 (Enlisted Qualification Record) which shows after completing basic combat and advanced individual training he was assigned to:

* Vietnam from 16 August 1964 to 5 August 1965
* Fort Hood, TX, from on or about 1 October 1965 to 24 February 1967

6.  Counsel provided an SF 600 which shows the applicant received medical treatment on 22 November 1965.  He reported feeling nervous and the medical authority prescribed 10 milligrams (mg) of Librium (used for the treatment of anxiety disorders). 

7.  His record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, of the Uniform Code of Military Justice (UCMJ)), dated 21 July 1966, which shows he received/accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to remain in the company area during an alert.

8.  Counsel provided an SF 89 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 2 February 1967.  This examination was conducted as an expiration term of service (ETS) medical examination.  

	a.  The SF 89 shows the applicant checked a box indicating he had been or was currently experiencing depression or excessive worry.  The physician clarified this box mark by indicating that he was suffering from excessive worry.  

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for separation.

9.  His record contains a DA Form 3082-R (Statement of Medical Condition) dated 17 February 1967 wherein he noted he had undergone a separation medical examination more than 3 working days prior to his departure from his place of separation.  He stated that, to the best of his knowledge, since his last physical examination his medical condition had changed in that he had developed a "[s]evere nervous condition since [his] return from overseas."

10.  He was honorably released from active duty on 24 February 1967.  His 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he attained the rank/grade of specialist five (SP5)/E-5, he attended the noncommissioned officer (NCO) basic course, and he completed 2 years, 11 months, and 28 days of net active service, of which 11 months and 20 days was credited as foreign service in Vietnam.  Additionally, he was awarded or authorized the:

* National Defense Service Medal
* Army Good Conduct Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal with two bronze service stars
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

11.  Counsel provided an SF 89 and an SF 88 dated 19 January 1968 showing the applicant received a medical examination prior to reenlisting.

	a.  The SF 89 shows the applicant checked a box indicating he had been or was currently experiencing depression or excessive worry.  The physician clarified this box mark by indicating that he had a "tendency to nervousness."

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for reenlistment.

12.  He again enlisted in the Regular Army on 24 January 1968 for a period of     3 years in the rank/grade of specialist four (SP4)/E-4.  He was honorably discharged on 17 March 1968 for immediate reenlistment.  He reenlisted for a period of 6 years the following day.  

13.  His DA Form 20 shows he was assigned to:

* Germany from 4 March 1968 to 22 January 1969 
* Vietnam from 3 March 1969 to 14 October 1969
* Fort Bliss, TX from on or about 8 December 1969 to 12 August 1970

14.  Counsel provided two SF 600s showing he received medical treatment on:

	a.  27 July 1969 and reported having had an anxiety reaction for which he was prescribed Librium.

	b.  17 January 1970, he went to the troop medical office (TMO) and requested to be seen/receive treatment for nerves.  

15.  Counsel provided an SF 89 and an SF 88 dated 9 March 1970 showing the applicant received a medical examination prior to reenlisting.

	a.  The SF 89 shows the applicant checked a box indicating he had been or was currently experiencing depression or excessive worry and nervous trouble of any sort.  The physician clarified these box mark by indicating that the applicant had "Headaches- when under tension, no complications" and "Worry and nervousness- situational."

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for Airborne training.
16.  He has honorably discharged for immediate reenlistment on 30 July 1970.  At the time of his discharge he held the rank/grade of staff sergeant (SSG)/E-6.  His DD Form 214 shows he completed 2 years, 4 months, and 13 days of net active service, of which 1 year, 5 months, and 15 days was credited as foreign service in U.S. Army Europe (USAREUR) (Germany) and U.S. Army Pacific (USARPAC) (Vietnam).  Additionally, he was awarded or authorized the:

* Vietnam Service Medal
* Republic of Vietnam Campaign Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

17.  He reenlisted on 31 July 1970 for a period of 6 years.  His DA Form 20 shows he was assigned to:

* Vietnam from 2 September 1970 to 3 September 1971
* Fort Lee, VA from on or about 20 September 1971 to 4 October 1972
* Fort Sill, OK from 16 October 1972 to 9 November 1982

18.  Counsel provided six SFs 600 showing he received medical treatment on:

	a.  20 September 1970, and received a neurological exam, the results of which were normal.  His physician also prescribed Valium and Darvon.  

	b.  23 June 1971, for a rash, nerves, and sleeplessness.  The doctor prescribed Valium.

	c.  5 July 1971 and 12 August 1971 he received refills on his Valium.

	d.  13 December 1971, he complained he felt nervous about his job and very nervous before class.  The physician felt he was suffering from mild to moderate situational anxiety and prescribed Librium.

	e.  23 February 1972, and complained he had been nervous recently.

	f.  17 April 1972, he complained of tension headaches and nervousness.  The doctor prescribed Valium.

19.  His record contains a DA Form 2627-1, dated 14 August 1972, which shows he received/accepted NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty to perform duties as staff duty NCO on 6 August 1972.  His punishment included a reduction in grade to sergeant 
(SGT)/E-5; however, the punishment was suspended for 3 months but later vacated on 13 September 1972.
20.  Counsel provided an SF 600, dated 2 September 1972, showing the applicant complained of nervousness and was prescribed Librium.

21.  His record contains a DA Form 3545 (Deserter Wanted by the Armed Forces) dated 10 October 1972 and a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) dated 24 October 1972 which show he departed absent without leave (AWOL) on 5 September 1972, he was dropped from the rolls (DFR) on 4 October 1972, and he surrendered to military authorities on 16 October 1972.

22.  His record contains a DD Form 458 (Charge Sheet), dated 4 October 1972, which shows court-martial charges were preferred against him for being AWOL from 5 September 1972 to 16 October 1972.

23.  His record contains a DA Form 2496 (Disposition Form), dated 20 October 1972, wherein he requested discharge IAW chapter 10 of Army Regulation 
635-200.  He stated he had not been subjected to coercion with respect to his request and had been advised of his rights and the implications attached to his request.  He indicated/acknowledged he understood that:

* if his request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate 
* as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, he could be deprived of all VA benefits, and he could be deprived of his rights and benefits as a veteran under Federal and State law
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge
* once he submitted his request for discharge it could be withdrawn only as provided in paragraph 10-5 of Army Regulation 635-200
* he had submitted a statement in his own behalf
* prior to completing his request he consulted with legal counsel on 
19 October 1972
* counsel advised him of his rights under the UCMJ, the stages and various proceedings involved in a general court-martial, the nature of the offense with which he had been charged, and the basis for the contemplated trial by court-martial
* counsel advised him of the maximum punishment authorized by the UCMJ and the effects of an undesirable discharge 

24.  He provided an undated statement in his own behalf, wherein he indicated he was requesting a discharge IAW chapter 10 of Army Regulation 635-200 and:

* subsequent to his return from Vietnam and prior to his AWOL he had been in and out of "small trouble"
* he felt a discharge IAW chapter 10 of Army Regulation 635-200 was fair and in the best interest of the Army, his family, and himself

25.  Counsel provided an SF 89 and an SF 88 dated 24 October 1972 showing the applicant received a medical examination prior to his discharge.

	a.  The SF 89 shows the applicant checked boxes indicating he had been or was currently experiencing frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort.  The physician clarified these box marks by indicating that he had "Trouble sleeping every night," "Excessive Worry," and that he was "Nervous."

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for release from active duty/discharge.

26.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 24 October 1972, which shows:

* his behavior was normal, he was fully alert, and he had a level mood
* his thinking process was clear, his thought content was normal, and his memory was good
* he had no significant illnesses, he was able to distinguish right from wrong, and was able to adhere to right
* he had the capacity to understand and participate in board proceedings and met the retention standards prescribed in chapter 3 of Army Regulation 40-501

27.  His records contain two endorsements to his discharge request, dated 
20 October 1972.  The first endorsement was issued by his company commander and the second by his battalion commander.  Both commanders recommended his request for discharge be approved and that he be issued an (under honorable conditions) general discharge because they believed his previous periods of good service and his numerous tours in Vietnam warranted a general discharge.

28.  On 9 November 1972, the separation authority approved his voluntary request for separation and directed he receive a General Discharge Certificate.  Accordingly, he was discharged that same day.

29.  His DD Form 214 confirms he was discharged, in the rank/grade of SGT/E-5, on 9 November 1972, in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under honorable conditions (general) characterization of service.  He completed 2 years, 1 month, and 29 days of net active service during the period under review, of which 1 year and 2 days was credited as foreign service in Vietnam.  He also had 41 days of lost time.  Additionally, he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal 
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Bronze Star Medal
* Army Good Conduct Medal (2nd Award)

30.  The applicant’s Enlisted Efficiency Reports for the periods August 1970 through March 1972 contain such comments as, “…is young, hard working, and shows great potential for advancement”; “…performed his duty with pride and kept the section functioning…;” “…has done an outstanding job as a Materiel Readiness Expediter for the Division Supply Office”; and “…has performed his duty as an instructor in Storage Training Division in a highly professional manner. His assignment…and his performance in this capacity has been outstanding; his technical competence is exceptional.”

31.  There is no indication that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

32.  Counsel provided several post-service civilian and VA medical records.  These records indicate that the applicant was seen on countless occasions and civilian and VA medical officials believed he suffered from anxiety neurosis with depressive features/PTSD as a result of his Vietnam service.  He began seeking treatment at various civilian and VA medical facilities directly after his discharge from military service.

33.  Counsel provided several VA rating decisions which show he received a service-connected disability rating for anxiety neurosis with depressive features which was reclassified to PTSD on 16 March 1993.  These ratings decisions show:

* on 1 July 1975 he was awarded a 30% disability rating 
* on 16 March 1993 his disability rating was increase to 50%
* on 29 April 1994 his disability rating was increased to 100%, with an effective date of 24 March 1994
* on 23 July 1996 the effective date of his 100% disability rating was changed to 12 September 1991

34.  Counsel provided ABCMR Docket Number AR2002076652, dated 
16 December 2003, wherein an applicant requested his under honorable conditions (general) discharge under the provisions of chapter 10, Army Regulation 635-200 be set aside and that he be retroactively placed on the Army's permanent disability retired list (PDRL), with appropriate disability rating and back retired pay, offset by severance pay.  The evidence of record also shows that the applicant was hospitalized for psychiatric reasons several times following his return from Vietnam and was treated with psychotropic drugs. 
He was also reassigned several times in an effort to find the right assignment for him, in order to lessen the symptoms of his mental distress from combat neurosis.  Not only was he reassigned, but his MOS was also changed to find the appropriate job classification for the changes being exhibited in his personality. His assignments were limited to duties that did not involve habitual or frequent exposure to loud noises or firing of weapons.  This applicant's request was granted based in part on a review of his medical records and the fact that the psychiatrist at the U.S. Army Physical Disability Agency (USAPDA) who reviewed his records for the ABCMR was biased as he had treated this applicant while he was in the military and found him fit for duty at that time.  The USAPDA physician did not acknowledge this connection with that applicant and failed to recuse himself from the case.  Additionally, the reason for the chapter 10 discharge in this case did not involve an episode of AWOL, but a sort of psychotic episode.

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

36.  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.

37.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

38.  Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

39.  Army Regulation 635-40 states a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial 
which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  His record shows he was AWOL for over 30 days and accepted NJP for failing to be at his place of duty.  He provides insufficient evidence to show his nervous problems or any other mental condition resulted in his not knowing that going AWOL was wrong.  As such, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  However, the evidence of record shows that his chain of command considered his previous service and he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which was normally considered appropriate in chapter 10
Separations when a Soldier was AWOL for over 30 days.

3.  Additionally, he was charged with an offense for which he could have been dismissed or given a punitive discharge.  As a result he was not eligible for referral to PDES for disability processing.  Therefore, he is not entitled to a medical discharge.

4.  The applicant served through three enlistments, had numerous physical examinations, and a mental health evaluation.  Each of his physical evaluations show he was medically fit for duty and his mental health evaluation indicated his psychiatrically fit.  Since he was found medically fit for service by each of the examining medical officials there would have been no reason for his records to go before the PDES.

5.  Further, his Enlisted Efficiency Reports show he was fully capable of performing his duties.  Medical separations are appropriate only when a medical condition prevents a Soldier from performing his duties.

6.  Counsel provided ABCMR Docket Number AR2002076652, dated 
16 December 2003, as justification for grating the applicant's requested relief.  However, that case involved an applicant who had been hospitalized repeatedly while on active duty for psychiatric treatments.  Additionally, the reason for the chapter 10 discharge in this case did not involve an episode of AWOL, but a sort of psychotic episode.  The individual circumstances in each applicant's case are unique; therefore, counsel's arguments and evidence will be considered on its own merit.  

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)                                         AR20130008938





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ABCMR Record of Proceedings (cont)                                         AR20130008938



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