BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130015564 


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 records by:

	a.  setting aside his punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL), thereby restoring his rank and forfeiture of pay;

	b.  expunging the criminal charge from his Official Military Personnel File (OMPF), the Defense Central Investigations Index (DCII), and National Criminal Information Center (NCIC) records; and

	b.  changing the narrative reason of his discharge to show he was separated due to medical disability.

2.  The applicant states his punishment and subsequent discharge were unjust due to the fact that he had a nervous breakdown on 5 April 1965 which resulted from a buildup of conditions that started on 4 June 1964 involving a rocket misfire and culminated with the death of his son.  There was lack of compassion and assistance provided by the Army, particularly from his commanding officer, and the medical records and statements provided bear this out.  He contends that he never knew the real reason he was discharged from the service and all these years he thought it was for hardship reasons.

3.  The applicant provides:

* self-authored statement
* DA Form 24 (Service Record)
* Clinical Record Brief – Hospital Admission (Manifold)
* Standard Form 509 (Clinical Record – Doctor's Progress Notes)
* Standard Form 502 (Clinical Record - Narrative Summary)
* letter from a clinical psychologist
* receipt for funeral expenses from the Howe-Peterson Funeral Home

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 on 18 November 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty 112 (Heavy Weapons Infantryman).  On 22 December 1964, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted in the Regular Army on 23 December 1964.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant provided a receipt, dated 1 April 1965, which shows he paid for funeral expenses at the Howe-Peterson Funeral Home in Michigan.

4.  The applicant's Standard Form 509, dated 2 April 1965, shows he was referred to a clinic by Social Services following an anxiety attack.  His wife had been discharged from the hospital that day after delivering a premature baby who only lived for 5 hours.  The applicant was very tense with severe body shaking.  As a result, a doctor recommended extension of his leave for 10 days based on hardship.  The American Red Cross was notified and indicated they would pass the recommendation on to the applicant's unit.

5.  A Standard Form 509, dated 4 April 1965, shows the applicant had an unscheduled visit to the clinic.  It noted that he was scheduled to leave for home base that day, but he became upset and nervous again so he was not placed on the airplane.  Supposedly, an extension of his leave had not been granted.  As a result, he was scheduled to report to the outpatient clinic the following morning to see a doctor about a resolution for his problem and to determine whether he required hospitalization.  In the interim, he was placed in quarters until his appointment.  The applicant reported that his nerves went all to pieces when he started to get on the airplane and he experienced crying and general trembling.

6.  A Standard Form 502 shows he was hospitalized at the U.S. Public Health Service Hospital in Detroit, MI, on 4 April 1965 and transferred to Walter Reed General Hospital on 12 April 1965, with the diagnosis of acute situational reaction.

	a.  In the military history portion of this document, the applicant denied that he had experienced any disciplinary action, but stated he had recently reenlisted "in order to get the bonus," but now wanted to get out of the Army.

	b.  In the social and family history portion of this document, he reported having a troubled childhood during which his mother and father argued a lot.  His mother was murdered following an argument in a bar when he was about 6 years old.  His father remarried a woman who tortured the kids, beat them daily, did not feed them, and lied to their father.

	c.  In the past medical history portion of this document, the applicant reported he "got a two-inch stone in [his] skull when [he] was six, which pushed [his] brain back, and was removed, with good healing."  He also reported that he hurt his back prior to service and has sudden stabbing pains on occasion since then.

	d.  His chief complaint was "I can't make a go of the Army."

	e.  The present illness portion of the document shows he was recently in transit to Aberdeen Proving Ground to take a course in accordance with the terms of his reenlistment bonus agreement and stated he did not want to go there because it was a hardship on his wife and baby, and he now wanted to get out of the Army.  After his child died, his emergency leave ran out and his commanding officer would not extend his leave.  When he got to the airport he had a nervous breakdown with shaking, crying, and getting confused.  He was going to be AWOL with his wife, but went to the hospital instead.  He claimed to have a hardship discharge pending.

	f.  The mental examination portion of this document shows the physician noted the applicant's insight was limited and his judgment was impaired by history.  The physician noted the trend of the interview was that no one could possibly do enough to make up for all the unpleasant and unfortunate things in the applicant's life.

	g.  The hospital course portion of this document noted the applicant was initially admitted to the closed psychiatric ward for intensive observation which revealed that he related in a variety of manners which were all immature, as described in the "Mental Examination."  He was quite adept at gaining an audience of other patients and of student nurses to spend time listening to his tale of woe.  He was moved to the open ward on his second hospital day, where he made a similar adjustment.  Throughout his hospital course he was quite manipulative and demanding of special passes, leaves, and other favors.

	h.  The present condition portion of this document noted his condition was unchanged since his admission.

	i.  The applicant was diagnosed as having a "personality disorder, passive aggressiveness, chronic, moderate, manifested by stubbornness, procrastination, passive obstructionism, pouting, marked immaturity and manipulative practices, undependability of judgment under stress, and limited insight and judgment; stress, minimal, routine military duty; premorbid personality and predisposition, mild, lengthy history of similar behavior; degree of psychiatric impairment, for further military duty, minimal.  LOD [Line of duty]:  No, EPTS [existed prior to service]."

	j.  The recommendation portion of this document noted the applicant stated he presently had a hardship discharge pending and recommended approval.  However, should his hardship discharge not materialize, the physician recommended administratively separating the applicant under the appropriate regulation as expeditiously as possible for the convenience of the government and his own benefit.  There were no disqualifying defects of physical or mental nature sufficient to warrant his disposition through medical channels.  He was mentally responsible.  The applicant's condition was not amenable to psychiatric therapies, neither to retraining, reclassification, nor to punishment.

7.  Additionally, the applicant's Clinical Record – Hospital Admission (Manifold) shows he was admitted to the hospital at 1900 hours on 5 April 1965.  He received treatment for an acute situational reaction for a period of 3 days prior to being transferred to Walter Reed General Hospital.

8.  His records contain a memorandum from a psychiatrist in the Department of Neuropsychiatry, Walter Reed General Hospital, dated 19 April 1965, subject:  Report of Psychiatric Evaluation for Administrative Separation, which stated the clinical summary (described in paragraph 6 above) is the result of a careful history, physical, and mental examination.

	a.  The applicant's condition was part of a character and behavior disorder due to deficiencies in emotional and personality development of such degree as to render him unsuitable for further military service.  This condition was not amenable to hospitalization, treatment, disciplinary action, training, or reclassification.

	b.  There was no physical or mental disability sufficient to warrant separation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	c.  The applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

	d.  While the final decision regarding disposition in this case rests with his command, appropriate administrative separation from the service was recommended.

9.  His records contain a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), dated 27 April 1965, which shows he accepted nonjudicial punishment for being absent from his assigned unit without proper authority from 21 to 22 April 1965 in violation of Article 86, UCMJ.  The applicant did not appeal the punishment.  As a result, he was reduced to the grade of private (PV2)/E-2, restricted to the company area for 14 days, and given extra duty for 14 days

10.  4th Enlisted Training Company, U.S. Army Ordnance Center and School, Aberdeen Proving Ground, MD, Unit Orders Number 10, dated 27 April 1965, reduced the applicant from the rank/grade of PFC/E-3 to PV2/E-2 effective 27 April 1965 as a result of misconduct.

11.  On 27 April 1965, his unit commander notified him of initiation of separation action against him for unsuitability under the provisions of Army Regulation 
635-209 (Personnel Separations – Discharge – Inaptitude or Unsuitability).  On the same date, the applicant acknowledged he had been counseled and advised of the recommended action and he had received a copy of the commanding officer's report and copies of all statements submitted as evidence and a list of names of persons who may make a statement to be used against him or who may testify against him.  He further acknowledged he had been afforded an opportunity to request counsel and declined this right.  He also declined an opportunity to have his case heard by a board of officers and to make a statement in his own behalf.  He added that he voluntarily signed this statement of his own free will and authenticated the document with his signature.

12.  On 27 April 1965, the unit commander recommended the applicant's discharge for unsuitability under the provisions of Army Regulation 653-209.  He noted the applicant was granted 6 days of emergency leave on 29 March 1965 because of the death of his child following a premature birth.  He was taken to the U.S. Public Health Service Hospital in Detroit on 5 April after passing out at the airport while on his way back from leave.  He was transferred to Walter Reed Army Hospital on 9 April 1965 and was released to his unit on 21 April 1965.  He was AWOL on 21 April 1965.  The intermediate commander recommended approval of the applicant's separation with the issuance of a DD Form 257A (General Discharge Certificate).

13.  On 27 April 1965, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-209 by reason of unsuitability due to character and behavior disorders with assignment of separation program number (SPN) 264 and directed the issuance of a General Discharge Certificate.

14.  On 12 May 1965, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-209 with SPN 264 for unsuitability, personality disorder.  He held the rank grade of PV2/E-2 at the time of his separation and was credited with a total of 1 year, 5 months, and 25 days of active duty service.

15.  On 16 April 1979, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that he was young and immature at the time of his discharge and had absolutely no idea of the significance a general discharge would have on his future.  On 22 October 1980, the applicant was notified that after reviewing the findings and conclusion of the ADRB, the Secretary of the Army directed an upgrade of his discharge to honorable.  Accordingly, he was issued a new DD Form 214 and an Honorable Discharge Certificate.

16.  His reissued DD Form 214 shows he was honorably discharged under the provisions of Army Regulation 635-209 with separation program designator code JMB for unsuitability – personality disorder.  This DD Form 214 also shows he held the rank grade of PV2/E-2 at the time of his separation and was credited with a total of 1 year, 5 months, and 25 days of active duty service.  The remarks portion of this document shows his discharge was upgraded on 6 August 1980.

17.  The applicant provided a self-authored statement wherein he essentially attests:

	a.  He did not know he had a criminal record until he attempted to purchase a shotgun and the application was denied.  When he requested his records from the Federal Bureau of Investigation, he discovered the criminal record was a result of his AWOL charge in the Army.

	b.  He suffered from an undiagnosed condition of post-traumatic stress disorder (PTSD) while serving in the Army which stemmed from being involved in a training accident.  The applicant had given the order for a recruit to fire a rocket launcher, but the recruit was not ready and the rocket landed in a bivouac area outside the firing range.  The lieutenant sent him and a noncommissioned officer (NCO) to investigate and they found a partially-exploded round lying in a crater.  He advised the NCO not to bother the round, but was ignored and the round exploded.  As a result they were both knocked unconscious and dazed.  The NCO's arm was bleeding badly and the applicant sustained a laceration over his left eye and forehead in addition to shrapnel burns to his arms, hands, and face.  This is documented in his medical records, but does not go into detail because the officer in charge wanted the incident covered up as easily as possible.  The NCO was sent to the burn center in San Antonio, TX, and he was treated at the emergency room and taken home.  One of the only living witnesses is his wife, who can and will testify as to his condition and the condition of his uniform when he was taken home.

	c.  Following the training accident, he was terrified and the lieutenant found him squatting down in the corner of a storage room crying and trembling in fear in remembrance of what had happened.  He begged the lieutenant not to reveal his condition because it was not very manly or becoming of a Soldier.  The lieutenant promised not to tell anyone and said he would approve a transfer if the applicant desired one.

	d.  From this point on, the applicant's depression only got worse and he began to drink constantly in an effort to overcome his feelings of guilt and shame.  When he heard an NCO had died in an accident, he presumed it was the one who was involved in the explosion with him and believed in his mind that he was responsible for the NCO's death.  It was some 10 years later when he was informed that it was a different NCO who had died as a result of an accident in Vietnam.

	e.  He reenlisted so he could be transferred out of the heavy infantry, away from artillery equipment and into another field.

	f.  While on leave en route to his next duty station, his pregnant wife went into premature labor.  Following the death of his son, he requested an additional 30 days of emergency leave.  The commander expressed his sympathy for what had happened to his wife and child, but stated there was nothing he could do to help the applicant's situation because his training class was scheduled to begin the following Monday and he needed to return to the unit.  He informed the commander that he needed to stay and bury his son because his wife was in the hospital and unable to do so.

	g.  He got the American Red Cross and his uncle, who was a lieutenant colonel in the Air Force, involved, but there was nothing they could do.  His company commander could not provide him with information about how to get financial aid to deal with the funeral expenses so he ended up going to the Air Force to receive assistance.

	h.  He had a nervous breakdown 4 days after his son's funeral and was hospitalized locally and then transferred to Walter Reed General Hospital.  He arrived there on 12 April and was discharged on 15 April.  In a 3-day period, the doctor was supposed to have examined him and rendered a three-page clinical report when, in fact, he never saw the doctor for more than 10 minutes during his entire stay.  The information was obtained from students who watched over the ward and, as a result, the information in the narrative summary is inaccurate and full of mistakes and errors because things were twisted out of context.  One such instance is the statement pertaining to him having had a stone in his skull which pushed his brain back.  He simply fell out of the back of a truck, split his head open, had stitches put in, and recovered.  He was under heavy sedation at the time and there is no telling what he told the doctor.

	i.  The doctor recommended returning him to his unit without retraining, reclassification, or punishment, but his commander elected to give him an Article 15 for 1 day of AWOL, which resulted in giving him a criminal record.

	j.  A doctor opined that the Army should have recognized that he needed medical treatment and in the event that he was going to be discharged, his discharge should have been medical in nature.

	k.  Department of Veterans Affairs (VA) doctors, some 30 years later, came to the conclusion that he suffered from PTSD back in 1965.  He had no idea what was wrong with him and could not hold a job.  His drinking caused him to get into trouble with the law in Charlotte, NC.  He pled guilty to a crime that he did not commit just to keep from getting a divorce.  In 1975, he sought treatment at a VA hospital in Wichita, KS, but was turned away.

	l.  In 1992-1993, he finally had health insurance so he was able to consult a doctor and begin to piece things back together.

18.  The applicant provided a letter from a clinical psychologist addressed to the Board of Veterans Appeals, dated 5 April 2000.  The doctor stated he had written to the VA and the Board of Veterans Appeals on previous occasions regarding his impressions of the applicant and his course of treatment with him and stated he now had additional information to share.  The doctor stated he had never maintained that the Army was responsible for the applicant's condition, because he believed the applicant had an undiagnosed severe mood disorder when he went into the Army.  He believed that any objective reading of the hospital discharge would lead one to the same conclusion.  He also believed the Army had a responsibility to recognize the extent of the applicant's illness and to take appropriate action to ensure that he received appropriate medical treatment.  At the very least, the applicant should have been given a complete psychiatric evaluation to determine the extent of his disability, a medical discharge if he was medically unsuitable for the service, and appropriate follow-up treatment at a veterans' hospital.  Instead, he was just discharged with no attempt on the part of the Army to adequately treat him.

19.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included character and behavior disorders.

20.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) superseded Army Regulation 635-209.  It 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.  

21.  Army Regulation 27-10 (Military Justice) states commanders may impose nonjudicial punishment for the administration of discipline under the provisions of Article 15, UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

22.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.
23.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. 
The OMPF is defined as permanent documentation within the Army Military Human Resource Record (AMHRR) that documents facts related to a Soldier during the course of his or her entire Army career, from time of accession into the Army until final separation, discharge, or retirement.  The purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, and any other personnel actions.

24.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

25.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

26.  Department of Defense Instruction 5505.7 and Army Regulation 195-2 (Criminal Investigation Activities) contain the authority and criteria for titling decisions.  Army Regulation 195-2 states titling only requires credible information that an offense may have been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or there is a complete lack of credible evidence to dispute the initial titling determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to lack merit.
2.  He contends that his misconduct was the result of an undiagnosed condition of PTSD; however, his records contain no evidence and he provides no evidence of being diagnosed with PTSD at any time.

3.  By his own admission, he was AWOL and he was subsequently reduced to PV2/E-2 as a result of this action.  He elected not to appeal the punishment at the time and even now he readily admits his offense was deserving of some punishment, but contends the loss of rank was too harsh.

4.  The evidence shows the applicant's only documented disciplinary action was for a minor offense.

5.  The evidence shows the applicant was examined by a psychiatrist.  The examining psychiatrist stated his attitude and behavior did not fit a pattern of any mental illness.

6.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-209 for unsuitability (character and behavior disorder) was administratively correct, all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the applicant was properly discharged.

7.  However, historically significant administrative decisions imposed specific criteria to be applied to discharges for character and behavior disorders.  As a result, the ADRB upgraded his discharge from general to honorable on 6 August 1980.  However, the ADRB did not amend the narrative reason for his separation.

8.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.

9.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit evidence that shows the documents in question that are filed in the performance folder of his OMPF are untrue or unjust.  Therefore, they are deemed to be properly filed and they should be retained in his OMPF.  As a result, there is no basis for granting the applicant's requested relief.

10.  The applicant contends that his OMPF, DCII, and NCIC records should be expunged of the charge that pertains to AWOL.  This contention was carefully considered and determined to lack merit.
11.  By law and regulation, titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  The applicant failed to provide evidence satisfying this standard for removal.

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 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)                                         AR20130015564



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ABCMR Record of Proceedings (cont)                                         AR20130015564



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