IN THE CASE OF:  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140009242 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. 

2.  As a new issue, the applicant requests award of the Purple Heart. 

3.  The applicant states his discharge was inequitable because it failed to include the fact that he was wounded in Vietnam or a record of his Purple Heart.  His record did not include a statement of facts; therefore, such statement was never considered.  It was not mandatory to receive an under other than honorable; conditions discharge.  The Board should consider that the record failed to show his state of mind at the time.  He was a teenager who was made false promises of special training and then sent to the front line.  After being wounded, there was an attempt to send him back to the front line with his open wound.  He left high school to serve his country but his country failed him.  Additionally, he was never evaluated prior to leaving the military.  He feels certain of suffering from post-traumatic stress disorder (PTSD).  He was exposed to Agent Orange and he was also diagnosed and treated for prostate cancer.  He was further diagnosed with diabetes.

4.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 7 February 1969 and 18 May 1972
* Medical record excerpts, January through May 1969

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001357, dated 14 August 2007.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his current request was not submitted within 1 year of the Board's original decision and it does not contain any new evidence.  However, his new issue (Purple Heart) necessitates addressing his military service and his discharge.  As a one-time exception to policy, the issue of the characterization of his service will be also considered by the Board.

3.  The applicant enlisted in the Regular Army for 3 years on 5 September 1968.  His DD Form 4 (Enlistment Contract) did not contain any promises for special training.  

4.  He completed basic combat and advanced individual training at Fort Polk, LA, and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in Vietnam from on or about 8 February 1969 to on or about 7 February 1970.  He was assigned to: 

* Company C, 6th Battalion, 31st Infantry, 9th Infantry Division, from on or about 1 March 1969 to on or about 30 May 1969, in MOS 11B
* U.S. Army Depot, Qui Nhon, from on or about 31 May 1969 to on or about 7 February 1970, in MOS 51B (Carpenter)

5.  He was wounded in action on 11 May 1969.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows he suffered fragment wounds to the left shoulder.  His service records contain a chronological record of medical care, dated 11 May 1969 that shows he suffered a superficial cut on the shoulder.  

6.  He was honorably discharged from active duty on 18 May 1969 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 
8 months and 14 days of active service.  It also shows he was awarded or authorized the: 

* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* 1st Class Gunner Marksmanship Qualification Badge with Machine Gun Bar (M-60)

7.  He reenlisted in the Regular Army on 19 May 1969.  He reenlisted for Army Career Group (ACG) Option 51 (Construction Utilities).  His DA Form 3286-5 (Statement of Enlistment) stated his enlistment in the 51 ACG Option assures him that, provided he met the additional requirements, he would be initially assigned to schooling or on the job training in an MOS embraced by his ACG.

8.  He completed his Vietnam tour and he was reassigned to 4th Battalion, 3rd Artillery Regiment, 1st Armored Division, Fort Hood, TX.  On 2 June 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to private first class/E-3, restriction, and extra duty. 

9.  In late June 1970, he was reassigned to the 2nd Battalion, 52nd Infantry, 1st Armored Division, Fort Hood.  However, on 13 July 1970, he departed his unit in an absent without leave (AWOL) status, and on 12 August 1970, he was dropped from the rolls as a deserter. 

10.  He appears to have returned to military control on or about 22 April 1972.  He was attached or assigned to the Personnel Control Facility, Fort Polk, LA. 

11.  On 9 May 1972, his command preferred court-martial charges against him for one specification of being AWOL from 13 July 1970 to 22 April 1972. 

12.  On 15 May 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he indicated/acknowledged that: 

* he was making the request of his own free will and he had not been subjected to any coercion by anyone
* he understood if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he further understood that if such discharge was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he could also be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement 

13.  In his statement, the applicant stated he had received the Purple Heart.  He also stated, "I cannot adjust to the Army life and I don't want to be in the Army.  I feel that I cannot adjust in the Army because I love to be free." 

14.  On 16 May 1972, the intermediate commander recommended approval of the discharge action.  He stated that he had investigated the applicant's background and service records.  After a thorough consideration of the nature and gravity of the charges and the attendant circumstances, he recommended approval of the discharge action with the issuance of an undesirable discharge. 

15.  On 18 May 1972, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and his reduction to the lowest enlisted grade. 

16.  He underwent a separation physical in connection with his discharge action. He stated he was in good health.  The examining physician found him medically qualified for separation and assigned him a PULHES of "1-1-1-1-1-1." 

17.  The applicant was accordingly discharged on 23 May 1972.  The DD Form 214 he was issued for this period shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial with a character of service of under other than honorable conditions and the issuance of an Undesirable Discharge Certificate.  This form confirms he completed 1 year, 2 months, and 28 days of active service with 648 days of time lost.  It also shows he was awarded or authorized the: 

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

18.  On 9 September 1975, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge. 

19.  On 14 August 2007, the ABCMR also reviewed his discharge and determined his separation processing was in compliance with the law and regulation and the characterization of service was equitable.  As such, the ABCMR denied his request for an upgrade of his discharge. 

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge 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 honorable discharge.  

21.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

22.  A review of his records indicates his entitlement to additional awards which are not shown on his DD Form 214.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that during his service in Vietnam from 7 February 1969 to 7 February 1970, campaign participation credit was awarded for the following campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. 

* Vietnam Counteroffensive, Phase VI, 2 November 1968-22 February 1969
* Tet 69 Counteroffensive, 23 February 1969-8 June 1969.
* Vietnam Summer-Fall 1969, 9 June 1969-31 October 1969
* Vietnam Winter-Spring 1970, 1 November 1969-30 April 1970.

23.  Department of the Army (DA) Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows during his service with the 6th Battalion, 31st Infantry Regiment, from 1 March to 30 May 1969, in Vietnam, this unit was cited for the following awards:

* Republic of Vietnam Gallantry Cross Unit Citation with Palm Unit Citation, for service from 1 January to 30 June 1969, based on Department of the Army General Order (DAGO) Number 59, dated 1969
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 19 December 1966 to 28 June 1969, based on DAGO 59, dated 1969 

24.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.
From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 

25.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

26.  The DSM fifth revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A, stressor:  The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) 

* Direct exposure 
* Witnessing, in person
* Indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental
* Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures

	b.  Criterion B, intrusion symptoms:  The traumatic event is persistently re-experienced in the following way(s): (one required) 

* Recurrent, involuntary, and intrusive memories 
* Traumatic nightmares 
* Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness 
* Intense or prolonged distress after exposure to traumatic reminders 
* Marked physiologic reactivity after exposure to trauma-related stimuli 

	c.  Criterion C, avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required)

* Trauma-related thoughts or feelings
* Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations)

	d.  Criterion D, negative alterations in cognitions and mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required)

* Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs)
* Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous")
* Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences
* Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame)
* Markedly diminished interest in (pre-traumatic) significant activities
* Feeling alienated from others (e.g., detachment or estrangement)
* Constricted affect: persistent inability to experience positive emotions. 

	e.  Criterion E, alterations in arousal and reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

* Irritable or aggressive behavior
* Self-destructive or reckless behavior
* Hypervigilance
* Exaggerated startle response
* Problems in concentration
* Sleep disturbance


	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. 

	g.  Criterion G, functional significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H, exclusion:  Disturbance is not due to medication, substance use, or other illness. 

27.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.  

28.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

29.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?

* Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* Was the applicant's condition determined to have existed prior to military service?
* Was the applicant's condition determined to be incurred during or aggravated by military service?
* Do mitigating factors exist in the applicant's case?
* Did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* Was the applicant's misconduct premeditated?
* How serious was the misconduct?

30.  Although the DoD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Purple Heart, the applicant's records contain a chronological record of medical care that confirms he sustained a superficial wound to the left shoulder in Vietnam on 11 May 1969.  This is further confirmed by the entry on his DA Form 20.  He met the criteria for award of the Purple Heart; therefore, he is entitled to this award and correction of his DD Form 214 to show it.  

2.  GO awarded his unit in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

3.  He was awarded the Vietnam Service Medal.  Additionally, he participated in four campaigns while serving in the Republic of Vietnam; therefore, he is entitled to award of four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

4.  With respect to the characterization of service: 

	a.  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 Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights were fully protected throughout the separation process. 

	b.  Contrary to his contention that his discharge was inequitable because it failed to include the fact that he was wounded in Vietnam or a record of his Purple Heart, the evidence of record clearly shows he mentioned the Purple Heart in the statement he rendered when he applied for voluntary discharge.  His commander thoroughly investigated his background and service records. 

	c.  Also contrary to his contention that his record did not include a statement of facts, the evidence of record clearly shows he submitted a statement and he indicated he did not want to stay in the Army.  

	d.  Also contrary to his contention that it was not mandatory to receive an under other than honorable conditions discharge, the regulation in effect at the time and the regulation in effect now mandates an automatic under other than honorable conditions characterization of service in connection with a request for discharge in lieu of trial by court-martial.  After all, the applicant could have elected trial by court-martial if he felt there were any extenuating circumstances or if he felt he was innocent of the charges. 

	e.  There is no evidence that shows the applicant suffered from any medical issues during the referenced period.  There is no evidence of record and none was provided with this application to show he suffered an injury or was or has since been diagnosed with a physical or a mental illness, including PTSD, or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty or caused him to go AWOL. 

	f.  He was not discharged because of any medical condition.  He was discharged because he chose to go AWOL and when he was returned to military control he chose to be discharged.  His service was interrupted by his AWOL and request for voluntary discharge. 

	g.  The available evidence clearly shows he elected to go AWOL.  Additionally, upon preferring court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made.  

3.  Based on his overall record of extensive history of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either honorable or general discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As for the new issue (Purple Heart), 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: 

* awarding him the Purple Heart for wounds received in action on 11 May 1969
* deleting from item his DD Form 214 the Vietnam Service Medal
* adding to item 24 of his DD Form 214 the Purple Heart, Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

2.  As for the issue of the characterization of service, 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 to amend the decision of the ABCMR set forth in Docket Number AR20070001357, dated 14 August 2007.



      _______ _  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)                                         AR20140009242



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ABCMR Record of Proceedings (cont)                                         AR20140009242



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