BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160004793 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: 23 May 2017 DOCKET NUMBER: AR20160004793 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. showing the applicant was separated from the service on 18 August 1971 with an honorable characterization of service; b. issuing him an Honorable Discharge Certificate, dated 18 August 1971, in lieu of the General Discharge Certificate on the same date now held by him; and c. issuing him a new DD Form 214, effective 18 August 1971, showing his characterization of service as honorable. ______________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: 23 May 2017 DOCKET NUMBER: AR20160004793 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 correction of his DD Form 214 (Armed forces of the United States Report of Transfer or Discharge) ending on 18 August 1971, by showing his characterization of service as honorable. 2. The applicant states he was told by the Federal judge who presided over his initial Department of Veterans Affairs (VA) claim that he should have been discharged due to his medical condition in 1971. However, post-traumatic stress disorder (PTSD) was not recognized at that time and “shell shock” also could not be used. 3. The applicant provides no additional documentation. 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. On 5 March 1968 the applicant was inducted into the Army of the United States. He completed training as a petroleum storage specialist. a. On or about 13 August 1968, he was assigned for duty in the Republic of Vietnam (RVN). He served in an assault helicopter company refueling aircraft. He departed the RVN on 2 September 1969 for duty in the United States. b. On 1 October 1969 he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for twice failing to go to his appointed place of duty at the time prescribed. c. On 6 March 1970 he was honorably released from active duty due to completion of required active duty service. He was transferred to the U.S. Army Reserve Control Group (Annual Training). 3. On 1 September 1970 the applicant enlisted in the Regular Army as a petroleum storage specialist. a. On or about 2 September 1970, he departed the United States for duty in the RVN. b. On 15 September 1970 he was assigned to the 235th Aviation Company for duty in his petroleum storage specialty. c. On 24 September 1970 he accepted NJP for breaking curfew. d. On 22 January 1971 he was reassigned to the 69th Infantry Detachment for duty as a radar operator. e. On 26 April 1971 he accepted NJP for failing to go to his appointed place of duty (Guard Mount) and for being absent from his quarters. 4. A letter addressed to the applicant’s battery commander, dated 3 June 1971, signed by the battalion surgeon, social worker, and chaplain, stated that the applicant had been involved in an amnesty program since 29 December 1970. He was admitted on 24 January 1971 to the withdrawal ward and successfully completed the amnesty program. He later failed due to continued use of drugs. He could not tolerate group counseling. He was seen regularly by the battalion chaplain. The applicant was found to be responsible for his actions and was determined to be unable to complete his military service. 5. A letter addressed to the applicant’s battery commander, dated 13 June 1971, signed by the program director (chaplain), program psychiatrist, and social worker, stated the applicant was given another chance and admitted to the withdrawal ward on 7 June 1971. He successfully completed the physical withdrawal portion; but failed the rebuild portion by not attending classes and group therapy sessions. Their observation was he had returned to using drugs. They recommended initiation action to separate him. 6. A Report of Psychiatric Evaluation, dated 18 June 1971, reports the applicant was diagnosed with having an anti-social personality disorder (character behavior disorder) and heroin addiction. He was released from the amnesty program because he was reported absent from the program. His mental status examination revealed he was a fully oriented, alert, cooperative individual with normal motor behavior. His mood was neutral. His affect was appropriate. There was no evidence of thought disorder. His memory was intact and insight was minimal. His intelligence was within normal limits. There was no evidence of drugs or alcohol. There was no evidence of psychosis or neurosis. The applicant’s condition and problems were not considered amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty within the military. 7. On or about 19 June 1971, the applicant accepted NJP for absenting himself without proper authority from his appointed place of duty on 18 June 1971. 8. On 21 June 1971, the applicant’s immediate commander’s notified him of his intention to recommend his separation from the U.S. Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for unfitness. The basis for this action was the three NJPs discussed above. He advised the applicant of his right to present his case before a board of officers, submit statements in his own behalf, be represented by counsel, or waive his rights in writing 9. On 24 June 1971, the commander recommended the applicant’s discharge from the U.S. Army for unfitness and that he be issued a DD Form 258A (Undesirable Discharge Certificate). 10. On 15 July 1971, the applicant acknowledged the contemplated action to separate him from the U.S. Army. He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a board of officers and to personally appear before that board of officers. He also requested representation and elected to not submit statements in his own behalf. He acknowledged he understood: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him * as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 11. On or about 23 July 1971, the applicant accepted NJP for absenting himself without proper authority from his appointed place of duty during 16 and 17 July 1971. 12. On 26 July 1971, the applicant accepted NJP for stealing a cassette tape recorder valued at $50.00 on 23 July 1971; and failing to obey a lawful general regulation by being in Ben-Xoi without the required pass. 13. On 31 July 1971, the battalion commander recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-212 for unsuitability and that he be issued a DD Form 257A (General Discharge Certificate). The battalion commander stated he had counseled the applicant on the disadvantages of receiving a general or an undesirable discharge and the prejudice he could expect to encounter in civilian life as a result of such a discharge. He also explained his right to have his case considered by a board of officers. 14. In a letter, dated 5 August 1971, the applicant acknowledged the contemplated action to separate him due to unsuitability. He now waived consideration of his case by a board of officers and a personal appearance before such a board. He did not elect to submit a statement in his own behalf and waived representation. Counsel advised him of his rights and authenticated the letter. 15. On 7 August 1971 the appropriate authority approved the separation action and directed issuance of a DD Form 257A (General Discharge Certificate). 16. On 18 August 1971 the applicant was discharged accordingly. He completed a total of 3 years, 5 month, and 13 days of creditable active duty service. His DD Form 214 shows he was discharged under the authority of Army Regulation 635-212 with separation program number (SPN) 264, indicating unsuitability due to character and behavior disorder, i.e., personality disorder. 17. There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 18. In the processing of this case, a staff medical advisory opinion was obtained from a staff psychiatrist. A review of the VA medical documentation indicates that as of 8 September 2008 he was rated 50 percent service-connected for PTSD. The VA medical notes document he continues to suffer PTSD symptoms of poor sleep, increased irritability, nightmares, flashbacks, depressed mood, social isolation and avoidant behaviors. His is currently receiving psychotherapy and medication management therapy. The psychiatrist concluded the applicant had a mitigating behavioral health condition for the offenses which led to his discharge from the U.S. Army. As PTSD can be associated with the use of illicit drugs, such as heroin, for self-medication, there is likely a nexus between the applicant’s heroin use and his PTSD. 19. On 7 December 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. A response was not received. REFERENCES: 1. Army Regulation 635-212, as then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy by a displayed lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. This regulation was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. 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 upgrade of discharges based on personality disorders. b. 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 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 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. DISCUSSION: 1. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 2. Subsequently, historically significant administrative decisions imposed specific criteria to be applied in this type of case. Therefore, his discharge appears to qualify him for an upgrade to an honorable discharge under the extraordinary provisions of the Brotzman/Nelson 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) AR20160004793 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004793 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2