IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009660 BOARD VOTE: _________ _______ ________ GRANT PARTIAL RELIEF ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009660 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. voiding his previous DD Form 214 and issuing him a new DD Form 214 that shows he was separated from the service with an honorable discharge on 14 April 1971 and that shows, among his other authorized awards, the Distinguished Flying Cross, and b. issuing him an Honorable Discharge Certificate from the Army of the United States, dated 14 April 1971, in lieu of his General Discharge Certificate. ___________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. IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150009660 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 an upgrade of his under honorable conditions (general) discharge to an honorable discharge and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was awarded the Distinguished Flying Cross (DFC). 2. The applicant states: a. He feels his status (discharge) is unjustified. b. He enlisted during the Vietnam War in 1968, and after basic training, he went to Fort McClellan, Alabama, for advanced individual training. He was convinced to go absent without leave (AWOL). He made poor decisions, getting into trouble and playing the system. c. He was sent to Vietnam as an 11B (Infantryman) with the 1st Cavalry Division. He extended for an additional tour and was promoted to specialist five (SP5); his service was impressive and honorable. d. Upon his return, he had a hard time adjusting, started drinking heavily, and was combative. He now realizes that guys coming back from combat in Vietnam were seriously suffering from post-traumatic stress disorder (PTSD). Instead of receiving help, he was busted and discharged under honorable conditions. e. After returning home, he struggled holding a job, kept drinking, and was having some mental issues with the war. He got help on his own, and with the assistance of his family, he pulled through. f. He was turned down for affordable insurance by USAA (United Services Automobile Association) due to his discharge status. He served his country during combat and feels he does not deserve to be refused a military discount. g. He would like his DFC added to his DD Form 214. 3. The applicant provides a self-authored statement, a copy of his DD Form 214, and a certificate, dated 18 June 1970, which shows he was awarded the DFC. 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's DD Form 214 was previously corrected to show he was awarded the DFC. A DD Form 215 (Correction to DD Form 214) added the DFC to his record on 13 March 1985. Therefore, this part of his request will not be further considered or discussed in these proceedings. 3. The applicant enlisted in the Regular Army on 24 January 1968. He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). He was later awarded a primary MOS of 67A (Door Gunner) on 10 September 1969 and MOS 11B became his secondary MOS. The highest rank/grade he attained while serving on active duty was SP5/E-5. 4. Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 9 October 1968 through on or about 31 May 1970. 5. He accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: a. On 2 January 1969, at Tay Ninh West, Republic of Vietnam, for disobeying a lawful order from his noncommissioned officer and platoon leader on or about 24 December 1968. b. On 2 January 1970, at Mui Ten Thang, Republic of Vietnam, for failing to make bed check and being AWOL from 17 December to 18 December 1969. c. On 10 August 1970, at Fort Riley, Kansas, for being AWOL from on or about 27July 1970 through on or about 3 August 1970. d. On 30 March 1971, at Fort Riley, Kansas, for being AWOL from on or about 29 March 1971 through on or about 30 March 1971. 6. Summary Court-Martial Order Number 44, issued by Headquarters, 1st Battalion, 28th Infantry Regiment, Fort Riley, on 9 December 1970, shows he was convicted of being AWOL from on or about 8 September 1970 through on or about 16 November 1970. He was sentenced to reduction to specialist four (SPC)/E-4 and forfeiture of one month pay. 7. Summary Court-Martial Order Number 18, issued by Headquarters, 1st Battalion, 28th Infantry Regiment, Fort Riley, on 1 March 1971, shows he was convicted of being AWOL from on or about 4 January 1971 through on or about 11 February 1971. He was sentenced to reduction to private /E-1, forfeiture of one month pay, and confinement at hard labor for 30 days. 8. His record contains a certificate, issued by a psychiatrist at the Mental Hygiene Consultation Service at Irwin Army Hospital, Fort Riley, dated 9 March 1971. This certificate was issued as a report for consideration of separation from military service. The medical officer stated the following: a. A review of this Soldier's pre-military and military history will indicate faulty judgement, non-commitment to productive goals, an incapacity to respond to rehabilitative efforts, resentment toward authority, and a tendency to go AWOL when stress arises. b. There are no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. This Soldier does not manifest a psychosis or neurosis, and his further management if the Commander's prerogative. It is believed that he will not adjust to military service and further rehabilitative efforts will be nonproductive. c. The service member was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings. d. The recommendation was a separation from the military service under the provisions of Army Regulation 635-212 [Discharge - Unfitness and Unsuitability], because of unsuitability. 9. The applicant's immediate commander notified him on 19 March 1971 of his intent to initiate elimination action against him under the provisions of Army Regulation 635-212 for unsuitability. The applicant acknowledged receipt of the original copy of the notification letter on 30 March 1971. 10. The applicant consulted with counsel on 31 March 1971 and was advised by counsel of the basis of the pending separation action. He completed a form, subject: Individual's Waiver Statement - Separation under the Provisions of Army Regulation 635-212, wherein he waived consideration of his case by and personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived his right to counsel. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 11. The immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability with a General Discharge Certificate. His commander stated the reasons for the action were: * the applicant's record of AWOL from the unit totaling 107 days, which resulted in him being dropped from the Army rolls * the applicant appeared before two Summary Courts-Martial while assigned * the applicant underwent corrective counseling, to no avail * the applicant's character and general behavior did not render him an asset to the service * the applicant was transferred to a different platoon for rehabilitation but for only one day, since he was then confined by a Summary Court-Martial 12. The separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-212 and directed he be issued a General Discharge Certificate. 13. The applicant was discharged on 14 April 1971. The DD Form 214 he was issued shows: * he was discharged under the provisions of Army Regulation 635-212 * he was issued the separation program number (SPN) 264 (unsuitability, character and behavioral disorders) * he was issued an under honorable conditions (general) discharge * he was credited with completing 2 years, 9 months, and 12 days of total active service, including 1 year, 7 months, and 23 days in the Republic of Vietnam * he had 159 days of lost time * he was awarded the following significant awards and decorations: * Distinguished Flying Cross * Bronze Star Medal * Purple Heart * Air Medal with "V" Device * Air Medal * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Combat Infantryman Badge 14. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 15. The applicant's medical records are not available for review. However, there is no available documentation nor does he provide any documentation that shows he was diagnosed with PTSD during his period of military service. REFERENCES: 1. Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability – character and behavior disorder. 2. Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability 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 inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic policy for the separation of enlisted personnel. It was revised on 1 December 1976, following the settlement of a civil suit. Thereafter, the type of discharge and the character of service were determined solely by the individual's military records during the current enlistment. Thereafter, any separation for unsuitability, based on personality disorder, must have included a diagnosis of a personality disorder made by a physician trained in psychiatry. a. 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 discharge upgrades based on personality disorders. b. 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 an 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 a 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. 4. 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. DISCUSSION: 1. The applicant's request that his under honorable conditions (general) discharge be upgraded to an honorable discharge was carefully considered. 2. The evidence of record shows he displayed a pattern of misconduct as evidenced by his AWOL offenses, summary courtS-martials, and NJP action. He was counseled repeatedly by his chain of command but counseling did not assist in his rehabilitation. 3. He contends that his misconduct resulted from mental issues attributable to PTSD. However, there is no documentary evidence nor does he provide evidence that shows he was diagnosed with PTSD. On 9 March 1971, a psychiatrist opined that he did not manifest a psychosis or neurosis and he had no disqualifying mental or physical defects that warranted disposition through medical channels. 4. Accordingly, his chain of command initiated elimination action against him based on a character and behavior disorder. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and his character of service is commensurate with his overall record of military service. The reason for his discharge and the characterization of service were both proper and equitable at the time. 5. The separation code attributed to his separation was used to identify unsuitability associated with a character and behavior disorder (now known as personality disorder). Therefore, it can be presumed that the applicant's misconduct, mostly AWOLs and mostly occurring after his 19 months in combat, resulted from a behavior disorder. 6. Subsequent to the applicant's discharge, the governing Army regulation was changed following the settlement of a civil suit. The resulting changes are summarily expressed in the Brotzman-Nelson memoranda. In view of these changes, the general discharge issued to the applicant at the time of separation is inconsistent with the standards for discharge for unsuitability – character and behavior disorder (now known as personality disorder) – that subsequently became effective. Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the applicant should receive an honorable discharge consistent with these standards. 7. Therefore, it now appears his overall service record warrants an upgrade of his character of service to fully honorable, as directed by the above-referenced Army memoranda. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009660 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009660 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2