IN THE CASE OF:	  

		BOARD DATE:	 10 June 2014 

		DOCKET NUMBER:  AR20130016895


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 three separate applications, award of the Purple Heart (PH) and upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

	a.  in August 1969, he was wounded by an enemy mine and treated at the 3rd Marine Division Hospital in Quang Tri, Vietnam;

   b.  he never received the PH to document his wounding; and
   
   c.  he was young and he was told he would receive an HD in one year.

3.  The applicant provides:

* an undated self-authored statement
* a Veterans Administration (VA) Form 07-3101 (Request for Information)
* a DD Form 215 (Correction to DD Form 214)
* an Army Review Boards Agency letter dated 30 November 2011

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 21 October 1968.  He was trained in and served in military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from on or about 20 June to 22 November 1969.  Item 40 (Wounds) contains no entries.

4.  His record does not contain an order or any other documents indicating he was ever recommended for or awarded the PH by proper authority.  it also does not contain any evidence showing he sustained a combat-related wound.

5.  On 9 September 1969, the applicant underwent a psychiatric examination that showed:

* after 11 months in service, 2½ in country, the applicant’s job performance to date had not been satisfactory
* his pre-military history (the death of his father, his mother remarried, his step-father had nothing to do with him that further instilled in him a sense of worthlessness, and the death of his close friend) led him to ingest medication in a suicide attempt and to be seen by psychiatrists
* more recently, he felt frightened in the field to the point where he took several grenades and threatened to detonate one
* his mood was chronically depressed but without vegetative symptoms, he displayed periodic confusion, impulsivity and immaturity with an intensive need to be close to someone
* he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels

* he was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings
* he was diagnosed with chronic depressive reaction in an immature personality
* he was recommended for separation from service under Army Regulation 635-212 (Personnel Separations (Discharge Unfitness and Unsuitability)

6.  On 22 October 1969, the applicant consulted with legal counsel and after being advised his rights and of the basis for the contemplated separation action, its effects, and his rights to a board of officers, personal appearance before a board of officers, and to representation by counsel.  He further elected not to make a statement in his own behalf.

7.  On 17 November 1969, the applicant's unit commander recommended him for discharge under the provisions of Army Regulation 635-212 by reason of unsuitability with a general discharge.  He cited the applicant's psychiatric evaluation and his poor duty performance as the basis for the elimination action.

8.  On 11 November 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unsuitability and directed the applicant receive a GD.  On 25 November 1969, the applicant was discharged accordingly.

9.  The DD Form 214 he was issued shows he completed 1 year, 1 month, and 5 days of creditable active service.  It further shows he was discharged under the provisions of Army Regulation 635-212 and assigned a Separation Program Number (SPN) of 264 (Unsuitability, character and behavioral disorders).

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

11.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam Casualty Roster.  There is no entry pertaining to the applicant.

12.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, also failed to reveal any orders for the PH pertaining to the applicant.
13.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

14.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

15.  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, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.  A second memorandum, dated 
8 February 1978, and 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.

16.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an HD 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.

17.  Paragraph 3-7b, provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the PH and his GD should be upgraded to an HD.

2.  The applicant’s administrative separation for unsuitability, character and behavior disorder was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Subsequently, historically significant administrative decisions imposed specific criteria to be applied in this type of case.  Therefore, his discharge should be upgraded to an honorable discharge under the extraordinary provisions of Secretary of the Army Memorandum, dated 8 February 1978.

5.  In view of the above, the applicant’s discharge should be upgraded to honorable.

6.  Item 40 of the applicant's DA Form 20 is blank and his name is not included on the Vietnam Casualty Roster.  In addition, the applicant's available record contains no evidence showing the applicant was wounded in action and medically treated for any wounding.  Absent corroborating evidence he was wounded as a result of enemy action and that he was treated for those wounds by military medical personnel while serving in the RVN the evidence he provides is insufficient to show he met the criteria for award of the PH.

7.  In view of the forgoing, that portion of the applicant’s request pertaining to the PH should be denied.


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:

      a.  showing the applicant was separated from the service with an Honorable Discharge Certificate on 25 November 1969;

      b.  issuing to him an HD Certificate, dated 25 November 1969, in lieu of the GD Certificate of the same date now held by him; and

      c.  issuing him a new DD Form 214, effective 25 November 1969, showing his characterization of service as honorable.

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 the award of the PH.




      _____________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)                                         AR20130016895



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ABCMR Record of Proceedings (cont)                                         AR20130016895



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