BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150011710 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150011710 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. BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150011710 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, the following: * an upgrade of his under other that honorable conditions discharge to an honorable discharge * award of the Purple Heart and Bronze Star Medal 2. The applicant states, in effect, his discharge should be upgraded based on recognition of post-traumatic stress disorder (PTSD). His records were burned in the fire in St. Louis, MO. His discharge was signed by President Nixon who resigned and abandoned his post, thus leaving him without his sergeant stripes, the Purple Heart, and the Bronze Star Medal that he earned for his actions on the Ho Chi Minh Trail in the demilitarized zone (DMZ). He never received these awards. 3. He previously attempted to have his discharge upgrade without success. He is getting older and his health is worsening. It is time for something to be done before it is too late. He served with great honor and sacrifice. He was only 17 years of age when he served in Vietnam. He was 18 years of age when he participated in search and destroy missions and night ambushes on the Ho Chi Minh Trail in the DMZ. 4. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 January 1971 that shows honorable service * DD Form 214 (Report of Separation from Active Duty) for the period ending 30 January 1975 that shows service characterized as under other than honorable conditions * newspaper article pertaining to his award of the Army Commendation Medal * two character reference letters 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. 2. The applicant enlisted in the Regular Army (RA) on 30 January 1970. At the time of enlistment, he was 17 years, 10 months, and 23 days of age. He held military occupational specialty 11B (Light Weapons Infantryman). He was promoted to pay grade E-4 on 15 December 1970. 3. He served in Vietnam from 27 June 1970 to 20 July 1971. 4. He was honorably discharged on 12 January 1971, for the purpose of immediate reenlistment. His DD Form 214 lists the National Defense Service Medal and Vietnam Service Medal. 5. He reenlisted in the RA on 13 January 1971. At the time of reenlistment, he was 18 years, 10 months, and 6 days of age. 6. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on/for: * 24 March 1971 – being absent without leave (AWOL) from 19 February to 10 March 1971; his punishment consisted of reduction to pay grade E-1 (suspended for 60 days) and forfeiture of $79 pay for 1 month * 8 June 1971 – failing to go to his appointed place of duty on 30 and 31 May and 3 June 1971; his punishment consisted of reduction to pay grade E-3 and a forfeiture of $34 pay for 7 days (suspended for 30 days) 7. He was reported in an AWOL status from 25 August 1971 to 24 May 1972 and was dropped from Army rolls as a deserter on 6 July 1972. 8. His records contain the following: a. A United States District Court for the Southern District of Texas Judgment and Commitment, dated 13 January 1973, showing, upon his plea of guilty, he was sentenced to 3 years for the unlawful possession with intent to distribute a quality of marijuana. b. A Statement written to the Alternative Service Board, dated 29 January 1975, wherein he stated that he departed AWOL from the military due to the lack of medical attention and serving time in prison for possession of narcotics. c. A statement, dated 20 January 1975, wherein he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313. d. A Standard Form (SF) 88 (Report of Medical Examination), which shows he underwent an examination on 29 January 1975 for the purpose of a separation under the Clemency Program. The form noted no psychiatric disease was demonstrated on that examination. He indicated on the form that "he was in good health and taking no medications." This form also noted he had mild high frequency hearing loss in the right ear. There were no physical or mental defects noted which warranted medical disposition. He was found qualified for separation. e. An SF 93 (Report of Medical History), dated 29 January 1975, wherein he indicated "he was in good health and taking no medication." He also noted that he had a drug addiction in Vietnam and currently. f. A DD Form 214 which shows he was discharged in pay grade E-1 on 30 January 1975, under the provisions of President Proclamation Number 4313. His service was characterized as under other than honorable conditions. He completed 1 year, 7 months, and 12 days of net active service and 1,129 days of time lost. His DD Form 214 lists the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * two overseas service bars * Army Commendation Medal * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and Pistol (.45 caliber) Bars 9. His DA Form 20 (Enlisted Qualification Record) lists in: * Item 40 (Wounds) – no entry showing he was wounded in action during his period of service Vietnam * Item 41 (Awards and Decorations) – the National Defense Service Medal, Vietnam Service Medal, Army Commendation Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 10. He provided: a. A newspaper article, dated 28 April 2015, concerning his award of the Army Commendation Medal for meritorious achievement while serving in Vietnam. b. Two character reference letters wherein the individuals attested that the applicant was a dedicated hard worker and the country should honor his service in Vietnam. One individual stated when the applicant returned from Vietnam it was obvious he was a different person with symptoms of PTSD that were common for those veterans who experienced combat. The applicant needed access to the Department of Veterans Affairs (VA) benefits that he earned when he willingly placed his life on the line for the United States of America. 11. His records also contain a letter, dated 11 July 1975, wherein the Selective Service System (SSS) stated the applicant was terminated from enrollment in the Reconciliation Service Program because he did not complete his required period of alternate service. The requirements of the program were explained to him and efforts were made to provide an opportunity for him to satisfactorily complete his alternate service. The decision to terminate the applicant from active enrollment in the program was based on his signed statement declining to participate. 12. His name is not shown on the Vietnam casualty roster. 13. A 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 U.S. Army Human Resources Command, failed to reveal any orders for two awards of the Purple Heart and Bronze Star Medal pertaining to the applicant. 14. There is no evidence he petitioned the Army Discharge Review Board (ADRB) within its 15 year statute of limitations for an upgrade of his discharge. Evidence shows he submitted an application to the ADRB at the same time he submitted his application to the ABCMR. 15. On 23 September 2016, an advisory opinion was provided by the Clinical Psychologist, Army Review Boards Agency (ARBA). The ARBA psychologist referenced the Diagnostic and Statistical Manual (DSM), 5th Edition; AR 40-501 (Standards of Medical Fitness), dated 4 August 2011; and AR 635-200, dated 6 September 2011. The ARBA psychologist stated: a. The applicant enlisted in the Army on 30 January 1970. He served a tour of duty in Vietnam from 21 June 1970 to 17 July 1971. He was discharged from the Army on 30 January 1975. At the time of his discharge, he had a total of 1,229 days of time lost due to the fact he was incarcerated for 3 years in a civilian prison, without the military's knowledge, for possession of marijuana with intent to distribute. Once the Army became aware of his situation, he was discharged with an under other than honorable conditions discharge. b. On 28 April 2015, the applicant applied to the ADRB for an upgrade of his discharge. He contended he had PTSD during his time in service and that was the reason for his misconduct. c. The ARBA psychiatrist was asked to determine if the applicant met the criteria for a diagnosis of PTSD at the time of his discharge from the Army. Documentation reviewed included the applicant's ABCMR application and his military personnel and medical records. The electronic military medical record was not reviewed as it was not in existence during his time in the service. The applicant did not provide the ABCMR with any VA or non-military medical records. d. A review of the applicant's military records confirmed that he did complete a tour of duty in a combat zone while in Vietnam. However, there was no documentation in either his military personnel or medical records of any symptoms consistent with PTSD occurring during his military service. In an SF 93, completed by the applicant on 29 January 1975, he wrote, "I am in good health and taking no medication." In that medical history report, the applicant denied depression, trouble sleeping, loss of memory, nervous trouble of any sort, or periods of unconsciousness. He also indicated on the SF 93 that he was "addicted." e. There is no indication in his military record that he failed to meet military medical retention standards in accordance with AR 40-501, chapter 3 and provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. f. Based on the information available for review at this time, there was insufficient evidence to determine if there was a nexus between PTSD or any other behavioral health condition and the misconduct which led to the applicant's discharge from the Army. While drug use and being AWOL could be associated with PTSD, those symptoms alone are not sufficient to make a diagnosis of service related PTSD. 16. The advisory opinion was provided to the applicant on 26 September 2016 for acknowledgement/rebuttal. In his response, the applicant provided no statements/rebuttal; however, he submitted a letter, dated 24 October 2014, wherein a psychiatrist reiterated the applicant's two tours in Vietnam at age 17 and his resulting mental health experiences. The psychiatrist stated that the applicant underwent a psychiatric evaluation and he was found to meet the criteria for PTSD. REFERENCES: 1. AR 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 under other than honorable conditions, 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 undesirable discharge 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 acceptable 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. 2. Two articles on Presidential Proclamation 4313, which were issued on 16 September 1974, and stated, in effect, it: a. Provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. b. Alternate service was to be performed under the supervision of the SSS. When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service. The military services issued the actual clemency discharges. The clemency discharge was a neutral discharge, neither honorable nor less than honorable. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Board for Correction of Military/Naval Records to carefully considered the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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. In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. Quite often, however, the records of service members who served before PTSD was recognized, including those who served in the Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct that caused the under other than honorable condition characterization of service. 4. AR 600-8-22 (Military Award) states: a. The Purple Heart is awarded for a wound sustained as a result of enemy action. Substantiating evidence must be provided to verify that 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. When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. b. The Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. 5. Title 10 of the U.S. Code (USC), section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. 6. The requests, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The unit must be clearly identified, along with the period of assignment and the recommended awards. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request. The burden and costs of researching and assembling supporting information rest with the applicant. DISCUSSION: 1. The evidence shows the applicant was reported AWOL and was subsequently dropped from Army rolls as a deserter. During that period of AWOL, he was serving a 3 year sentence for possession and intent to distribute marijuana in a civilian jail. He subsequently requested to be separated under the provisions of Presidential Proclamation Number 4313. He was discharged accordingly on 30 January 1975. He was subsequently terminated from the Reconciliation Service Program based on his signed statement declining to participate. 2. His record is void of evidence showing he was diagnosed with PTSD during his military service. There is insufficient evidence to support that PTSD or any other behavioral health condition prevented him from satisfactory completion of his second term of service. Also, his military personnel and medical records contain no evidence which would qualify him for an upgrade of his discharge. His offenses diminished the quality of his service below that meriting a fully honorable or general discharge. 3. He was 17 years, 10 months, and 23 days of age at the time of his initial enlistment, over 18 years of age at the time of reenlistment, and over 19 years of age at the beginning of his lengthy AWOL offense. There is no evidence he was any less mature than any other Soldiers of the same age who honorably completed their terms of service or that his actions were a result of his age. 4. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process. Any current medical reasons and/or conditions are not sufficiently mitigating to warrant an upgrade of his discharge. 5. Current standards provide for liberal consideration in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct. 6. The evidence of record confirms he did not satisfactorily complete the alternative service. Completing the requirements of the program provided for a clemency discharge, not a general or an honorable discharge. It would have restored his civil rights, but did not change his underlying discharge and would not have entitled him to any benefits administered by the VA and did not require an upgrade of his underlying discharge in order to secure such benefits. 7. With respect to his request for award of the Purple Heart: a. No orders or evidence were found either in his service personnel record or in the ADCARS data base. Furthermore, item 40 of his DA Form 20 does not show he was wounded in action in Vietnam. Item 41 of this form does not list any award of the Purple Heart. His name is also not on the Vietnam casualty roster. b. By regulation, to be awarded the Purple Heart it is necessary to established that a Soldier was wounded or injured in action. There must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record. The available evidence does not show that the applicant incurred a wound meeting these criteria. 8. With respect to his request for award of the Bronze Star Medal, no orders or evidence were found either in his service personnel record or in the ADCARS data base to substantiate his claim. A recommendation to deny relief on this issue in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of Title 10, USC, section 1130. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011710 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011710 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2