BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160001700 BOARD VOTE: ____x_____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160001700 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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. awarding him the Purple Heart for wounds incurred as a result of hostile action in Vietnam on 27 January 1971 and b. reissuing the applicant’s DD Form 214 for the period ending 25 January 1972 showing his characterization of service as general, under honorable conditions and showing his awards on the reissued DD Form 214 as follows: * Purple Heart * Army Commendation Medal * National Defense Service Medal * Vietnam Service Medal with one bronze service star * Republic of Vietnam Campaign Medal with Device (1960) * Parachutist Badge * Combat Infantryman Badge * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation _____________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: 8 August 2017 DOCKET NUMBER: AR20160001700 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 discharge under other than honorable conditions to a general discharge and award of the Purple Heart. 2. The applicant states: a. He was suffering from post-traumatic stress disorder (PTSD) symptoms and anxiety disorder that were not treated or recognized during his period of military service. He served honorably during the Vietnam War and he is unable to receive benefits from the Department of Veterans Affairs (VA). b. He believes his discharge should be upgraded based on many factors and he should be awarded the Purple Heart. He believes he was suffering from PTSD then and he continues to suffer with PTSD symptoms as indicated on the attached psychiatric evaluation from Mayo Clinic, Florida. c. His military records contains a Standard Form (SF) 93 (Report of Medical History), dated 15 September 1971, that shows he answered "Yes" for “depression or excessive worry” and “nervous trouble of any sort.” This SF 93 also show that he was wounded in the abdomen and both legs in Vietnam. d. He was awarded the Parachutist Badge prior to going to Vietnam and he was awarded the Army Commendation Medal and Combat Infantryman Badge during his period of service in Vietnam. In two statements, dated 8 and 13 October 1971, his first lieutenant and sergeant stated he had changed after his return from Vietnam. His attitude was not good; he began using drugs to cope with nightmares and everyday life. He began going absent without leave (AWOL). He was sent for physical and mental evaluations. He did not see a psychiatrist and he was not aware that he had a mental health problem and PTSD was unrecognized at that time, only "shell-shock" was recognized. e. The attached Fort Bragg (FB) Form 1915 (Request for Final Type Physical Examination and Mental Status Evaluation) shows his behavior was passive-aggressive to hostile, his mood was depressed, his thinking process was confused, and his thought content was paranoid. This examination should have raised red flags to a health professional to send him to a psychiatrist. He was 21 years of age and all he knew was the infantry. Instead of receiving treatment, he was discharged under other than honorable conditions in lieu of a court-martialed. f. Although he received counseling on the separation proceedings, as stated on the FB Form 1915, his thinking process was confused. All he knew was that he was tired of killing and seeing the dead. He just wanted out from the nightmare. Looking back and with the present awareness of PTSD, he believes he was suffering from this mental health condition. He was a stellar Soldier until he returned from Vietnam, as his records indicate. 3. The applicant provides: * Special Orders (SO) Number 107, 121, 202, 250, 335, and 108 * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 3 June 1970 and 25 January 1971 * Department of the Army General Orders (DAGO) Number 6568 * SF 93 * FB Forms 1915 and 2408 * DA Form 2823 (Witness Statement) * Discharge of Enlisted Man memorandum * Psychiatric/Psychology Clinic Report 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 2 October 1969 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman). He also completed the Basic Airborne Course. 3. He served in Alaska from 5 May to 16 June 1970 and he was promoted to pay grade E-3 on 5 June 1970. While in Alaska, the following orders were issued by Headquarters, 172nd Infantry Brigade: * SO Number 107, dated 18 May 1970, assigning him to hazardous parachute duty, effective 12 May 1970 * SO Number 121, dated 5 June 1970, awarding him the Expert Marksmanship Qualification Badge with Rifle Bar (M-14) 4. He was honorably discharged on 8 June 1970 for the purpose of immediate reenlistment. His DD Form 214 shows he was credited with completing 8 months and 7 days of active service. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the: * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) 5. He reenlisted in the RA on 9 June 1970 and continued to serve in MOS 11B1P (the "P" is a special qualification identifier designating parachutist). He served in Vietnam from 22 July 1970 to on or about 27 May 1971, during one campaign. He was assigned to: * Company A, 1st Battalion, 503rd Infantry, from 5 August to 22 December 1970 * Company B, 4th Battalion, 503rd Infantry, 173rd Airborne Brigade, from 23 December 1970 to 25 February 1971 6. His record contains and he also provided the following orders issued by Headquarters, 101st Airborne Division (Airmobile): * SO Number 250, dated 7 September 1970, awarding him the Combat Infantryman Badge * SO Number 335, dated 1 December 1970, promoting him to pay grade E-4 * General Orders Number 6568, dated 15 June 1971, awarding him the Army Commendation Medal for service in Vietnam from July 1970 to July 1971 7. His records also contain the following: a. DA Form 3349 (Medical Condition – Medical Profile Record), dated 4 March 1971, assigning him a temporary profile for fragment wounds sustained to both legs and the chest. b. DA Form 3647-1 (Clinical Record Cover Sheet), dated 5 March 1971, showing he was injured by a hostile booby trap on or about 27 January 1971 in Vietnam. He sustained multiple fragment wounds to both lower extremities and the chest and he was admitted to the 67th Evacuation Hospital. This form noted the Purple Heart was not awarded at that facility. c. SO Number 108, issued by the 26th Aeromedical Staging Flight on 23 May 1971, showing he was in a patient status. 8. On 3 August 1971, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 9 to 29 July 1971. His punishment consisted of reduction to pay grade E-3 (suspended for 4 months), a forfeiture of $75 for 2 months, and extra duty for 15 days. 9. On 9 August 1971, he was convicted by a summary court-martial of two specifications of being AWOL from 9 to 17 August and from 19 to 23 August 1971. The court sentenced him to reduction to pay grade E-2 and forfeiture of $99 pay for 1 month. On 8 October 1971, the convening authority ordered the sentence duly executed. 10. His records also contain and he also provided the following: a. An SF 93 showing he underwent a medical examination for the purpose of discharge on 5 September 1971. He noted on this form that his health was good and he was wounded in Vietnam. The examining doctor noted the applicant was a heroin addict for 1 year, he was depressed with the service, he was wounded in Vietnam in the abdomen and both legs, and he had contracted malaria. b. An FB Form 1915 showing he underwent a mental evaluation on 5 September 1971. His behavior was found to be passive-aggressive and he was fully alert and fully oriented. His mood was depressed, his thinking process was confused, and his thought content was abnormal (hallucinations, paranoid ideation, and delusions). The examining medical corps doctor noted the applicant had no significant illness, he was mentally responsible and able to distinguish right from wrong, and he was able to participate in board proceedings. c. A Certificate, dated 8 October 1971, wherein the applicant's company commander stated that he counseled the applicant on several occasions concerning his present attitude. The applicant expressed a desire to be discharged from the Army. The commander and key personnel in the unit had closely observed the applicant's conduct and found the applicant's morale to be extremely low and he displayed a completely apathetic attitude. The applicant was slow to perform minimal tasks because of his obvious lack of interest in the service. The applicant served a successful tour in Vietnam and had current problems adjusting to garrison duty. The commander felt the applicant's use of narcotic drugs was related to his adjustment difficulties. Prior to the completion of his tour in Vietnam, his conduct was satisfactory. Any further rehabilitative efforts or counseling would be useless. d. A DA Form 2823, dated 13 October 1971, wherein the applicant's unit squad leader stated the applicant had been neglecting his everyday duty as a Soldier and he was of no use to the Army. 11. On 14 October 1971, he accepted NJP under Article 15, UCMJ, for sleeping on guard duty on 4 October 1971 and failing to go to his appointed place of duty on 5 October 1971. His punishment consisted of a reduction to pay grade E-1, a forfeiture of $95 pay for 1 month, and extra duty for 30 days. 12. Unit Orders Number 37, issued by Headquarters, 1st Battalion (Airborne), 505th Infantry, on 28 October 1971, reduced him to pay grade E-1, effective 14 October 1971. 13. He was reported AWOL on 2 November 1971 and dropped from the rolls as a deserter on 2 December 1971. He was returned to military control on 30 December 1971. 14. On 3 January 1972, a DD Form 458 (Charge Sheet) was completed by the Commander, Company B, 1st Battalion, 505th Infantry, 3rd Brigade, charging the applicant with one specification of being AWOL from 2 November to 30 December 1971. On the same date, court-martial charges were preferred. 15. On 3 January 1972, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged that counsel fully advised him that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. He also acknowledged that he could be discharged under other than honorable conditions, furnished an Undesirable Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 16. On 4 January 1972, the applicant's company commander recommended approval of the applicant's request and recommended the issuance of an Undesirable Discharge Certificate. 17. On 17 January 1972, the separation authority approved the applicant’s request and directed the issuance of an Undesirable Discharge Certificate. 18. He was discharged accordingly in pay grade E-1 on 25 January 1972. His DD Form 214 for this period shows he completed 1 year, 4 months, and 2 days of active service and he had 80 days of lost time. His service was characterized as under other than honorable conditions. Item 24 of this form lists the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) (erroneously listed as the Vietnam Campaign Medal with "V" Device) * Army Commendation Medal 19. Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) lists the: * National Defense Service Medal * Parachutist Badge issued by SO Number 82 (not in the available record) * Vietnam Service Medal * Vietnam Campaign Medal * one overseas service bar * Army Commendation Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) issued by SO Number 21 on 29 January 1970 20. He further provided a Psychiatric/Psychology Clinic Report showing he was seen in the clinic for anxiety problems. The report shows he was diagnosed with adjustment disorder with depressed mood and opioid and alcohol dependence. The report also noted that based on information from the applicant, he had a history with PTSD. 21. There is no evidence he petitioned the Army Discharge Review Board within its 15 year statute of limitations for an upgrade of his discharge. 22. The available evidence does not contain orders awarding him the Purple Heart. a. His name is listed on the Vietnam casualty roster. b. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal orders for award of the Purple Heart pertaining to the applicant. 23. On 2 December 2016, an advisory opinion was provided by a Army Review Boards Agency (ARBA) medical advisor. The medical advisor stated: a. The applicant's DD Form 214 shows he was discharged under other than honorable conditions on 25 January 1972. The applicant was also honorably discharged on 8 June 1970, which allowed him to reenlist to serve in Vietnam. The applicant is petitioning for an upgrade of his discharge and for unrecorded awards to be listed on his DD Form 214. There were no Department of Defense (DOD) electronic medical record Armed Forces Health Longitudinal Technology Application (AHLTA) records nor interactive Personnel Electronic Records Management System records available at the time. There were limited VA records through the Joint Legacy Viewer available. b. The applicant served in the Army from 2 October 1969 to 25 January 1972. He served in Vietnam with the 173rd Airborne, "the herd," and he was awarded a Combat Infantryman Badge that is not listed on his DD Form 214. He was hospitalized and had a temporary L3 profile for shrapnel injuries suffered in Vietnam. The events that led to his wounds were not indicated, but the records do show he was in the hospital for them and they were sustained in Vietnam. His record shows no difficulties prior to his tour in Vietnam, though he did have a juvenile record for vandalism. c. During the applicant's service, his exit medical examination indicated that he had a history of 1 year of heroin addiction. After he left the service, drugs and alcohol continued to be a problem for him. As a supplement to his DD Form 149, he provided medical evidence, a report from the Psychiatry and Psychology Clinic of the Mayo Clinic in Florida. The provider offered diagnoses of adjustment disorder with depressed mood, opioid dependence in full sustained remission, and alcohol dependence in full early remission. Although the provider did not make a diagnosis of PTSD, he noted a history, based on the applicant's report that was "consistent with past PTSD." d. Based a review of the available records, including the applicant's discharge and the medical examination that noted symptoms of anxiety, depression, and drug abuse, he concurs with the provider's assessment and believes the applicant met the criteria for a PTSD diagnosis at the time of his discharge. The deterioration of his performance occurred after being wounded and completing his service in Vietnam. Upon his return to the United States, he self-medicated and showed avoidant behavior, including four periods of AWOL in 1971, as well as depression and anxiety. The applicant's performance evaluations dropped from the excellent marks he enjoyed prior to and during his Vietnam service to unsatisfactory after his return from Vietnam. His apathy and indifference as a Soldier clearly frustrated his leaders. The applicant's misconduct after Vietnam was mitigated by what would now be recognized as PTSD. e. The applicant's available records do reasonably support that he had a boardable medical condition at the time of discharge, as PTSD was not then recognized. He met the standards in AR 40-501 (Standards of Medical Fitness), and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The applicant had a mitigating condition. There is sufficient evidence to show he had PTSD and the kind of misbehavior that led to his under other than honorable conditions discharge was alien to him prior to Vietnam. Also, the veracity of his claim is repeatedly corroborated by the available records. f. It is concluded the applicant met medical retention standards and his medical conditions were duly considered during medical separation processing. A review of the available documents did find evidence of a medical disability or conditions that would support a change of the character of service or reason for discharge in this case. A causal nexus between the applicant's behavioral health diagnoses and his misconduct was discovered. 24. The advisory opinion was provided to the applicant on 6 December 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for separation of enlisted personnel. 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 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 conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records to carefully consider 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 have mitigated the misconduct that caused the under other than honorable condition characterization of service. 3. AR 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. It stated the DD Form 214 would be prepared for all personal at the time of retirement, discharge, or release from active duty. The regulation stated item 24 would lists all awards authorized during the period covered by the form. 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. Examples of enemy-related injuries which clearly justify award of the Purple Heart include an injury caused by an enemy placed mine or trap. b. A bronze star is authorized for wear on the Vietnam Service Medal to denote campaign participation. 5. Department of the Army (DA) Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the 4th Battalion, 503rd Infantry was cited for the following awards when he was assigned to the unit: a. Republic of Vietnam Gallantry Cross with Palm Unit Citation Palm, for the period 5 May 1965 to 26 September 1970, by DAGO Number 51, dated 1971. b. Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, for the period 15 April 1969 to 16 March 1971, by DAGO Number 5, dated 1973. DISCUSSION: 1. With respect to the characterization of service: a. The applicant was charged and acknowledged he had committed an offense punishable under the UCMJ with a punitive discharge. Discharge actions processed under the provisions of chapter 10, AR 635-200, are voluntary requests for discharge in lieu of court-martial. He also acknowledged that he could be furnished an Undesirable Discharge Certificate. The separation authority approved his discharge and he was separated accordingly. b. No evidence has been presented which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. c. However, at the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. Both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. d. The evidence of record supports that the applicant has been suffering from PTSD as a result of his combat experiences in Vietnam. His AWOL offenses are consistent with the avoidance characteristic of PTSD. The medical advisor concluded that his PTSD conditions were a causative factor in the misconduct that led to the discharge. e. 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. In view of his record of AWOL, NJPs, and convictions, his service did not rise to the level required for an honorable discharge. f. He has requested an upgrade to a general discharge. 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. 2. With respect to his request for award of the Purple Heart; his military records contain a DA Form 3647-1, dated 5 March 1971, showing he was injured by a hostile booby trap on or about 27 January 1971 in Vietnam, he received medical treatment, and that treatment was made a matter of official record. This evidence meets the criteria for award of the Purple Heart. 3. With respect to other awards: a. SO awarded him the Parachutist Badge, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) during his military service. These awards were not listed on his final DD Form 214. b. He participated in one campaign in Vietnam and qualifies for one bronze service star to be added to his already-awarded Vietnam Service Medal. The bronze service star was not listed on his final DD Form 214. c. 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 during his period of service. His final DD Form 214 does not list these unit awards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001700 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001700 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2