IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140019341 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge based on the Department of Defense (DoD) reviewing Vietnam Era veteran discharges.

2.  The applicant states he did not know the Board existed until reading the article pertaining to the DoD reviewing Vietnam Era veteran discharges.  There was a Yale Law Class Action suit for upgrades.  He was advised by an Army attorney to resign, not knowing the impact it would have (shame, job loss, and no benefits).  The Army Discharge Review Board (ADRB) denied his upgrade request in 1976.  His military service was excellent for 6 months.  His post-military life is uneventful.  He has been married for 38 years to a local woman and he has 2 children.  He started and operated a plumbing business from 1985 to 2000.  He changed careers to law enforcement and became a sergeant for Wackenhut Corporation and then worked for the New York Corrections Union as a security officer.  He was diagnosed with a spinal injury and was forced to resign his position.  He retired under social security disability.

3.  The applicant provides copies of the following:

* Business Certificate
* Security Officer In-Service Training certificate
* Department of Homeland Security, Emergency Management Institute, Certificate of Achievement
* The Neurosciences Institute Follow-up Visit

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 the cases 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, in pay grade E-1, on 30 September 1971, for 3 years.  He was awarded military occupational specialty 94B (cook).  He was advanced to pay grade E-2 on 19 December 1971.  He served in Alaska from 25 April through 7 September 1972 (emphasis added).

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 7 January 1972 – being absent without leave (AWOL) from 2 to 6 January 1972; he elected to appeal and his appeal was denied on 6 March 1972
* 8 February 1972 – being AWOL from 2 to 4 February 1972
* 28 February 1972 – failing to go to his appointed place of duty on 28 February 1972
* 1 March 1972 – failing to go to his appointed place of duty on 29 February 1972

4.  He was reported AWOL on 1 May 1972 and dropped from the rolls of his organization on 30 May 1972.  He was returned to military control on 24 July 1972.

5.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  An action dated 21 August 1972, wherein the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted  Separations), chapter 10.  The separation authority directed the issuance of an Undesirable Discharge (UD) Certificate and reduction to pay grade E-1.

   b.  Special Orders Number 111, issued by Headquarters, 9th Infantry Division and Fort Lewis, WA on 13 September 1972, discharging him UOTHC under the provisions of chapter 10, Army Regulation 635-200, effective 13 September 1972. 

   c.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged on 13 September 1972.  He was credited with completing 8 months and 21 days of active service and 83 days of time lost.  His service was characterized as UOTHC and he was issued an UD Certificate.  His DD Form 214 shows in item 30 (Remarks) the entry, "VN [Vietnam] Service: NO" (emphasis added).

6.  His record is void of any evidence he was diagnosed with post-traumatic stress disorder (PTSD) or PTSD-related conditions prior to his entry on active duty, and/or during his period of service, and after his period of service.

7.  On 21 November 1977, the ADRB advised him of the denial of his request for an upgrade of his UD.

8.  On 4 January 1995, in response to his request for an upgrade of his UD, the ABCMR denied him the request relief due to lack of timely filing his application within the 3-year statute of limitations.

9.  He provided copies of the following:

* Business Certificate he attained on 12 August 1988
* Security Officer In-Service Training certificate, dated 27 April 2008
* Department of Homeland Security, Emergency Management Institute Certificate of Achievement, dated 10 July 2008
* The Neurosciences Institute Follow-up Visit which shows he returned to the clinic on 3 September 2008 to proceed with a laminotomy for tethered cord release (spine) medical procedure

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UD would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  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.  

12.  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.

13.  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?

14.  Although the 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 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 causal relationship of symptoms to the misconduct.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances surrounding his discharge; however, it appears after court-martial charges were preferred against him and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

2.  There is no available evidence and he provided none showing he was diagnosed with PTSD or PTSD-related conditions prior to, during, or after his period of active duty or PTSD prevented his satisfactory completion of his term of enlistment.  As such, it appears he does not meet the service criteria established by the Secretary of Defense on 3 September 2014.

3.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would support an upgrade of his UD.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a general or a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

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)                                         AR20140019341



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ABCMR Record of Proceedings (cont)                                         AR20140019341



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