DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 1BTH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 29 June 2016 MEMORANDUM FOR Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 SUBJECT: Army Board for Correction of Military Records Record of Proceedings Reference the attached Army Board for Correction of Military Records of Proceedings, dated 21 June 2016, in which a majority of the Board members recommended denial of the applicant's request. 1. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by removing the general officer memorandum of reprimand, dated 19 January 2005, and all associated documents from his Official Military Personnel File. 2. Request necessary administrative action be taken to effect the correction of records as indicated no later than 28 October 2016. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150001328 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: 14 June 2016 DOCKET NUMBER: AR20150001328 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: 14 June 2016 DOCKET NUMBER: AR20150001328 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 applicants, the widow and daughter of a deceased former service member (FSM), request an upgrade of his discharge. 2. The applicants state the FSM's records were destroyed in a fire in 1973. The decision of denial of death benefits by the Department of Veterans Affairs (VA) was based on an earlier application received by the VA in June 2013 and did not include the National Archives (NA) Form 13038 (Certification of Military Service), dated 30 August 2013. That form stated that the FSM's service was terminated by honorable release from active duty. They resubmitted this form in a second application to the VA in Philadelphia on 4 October 2013. 3. The applicants provide: * Congressional correspondence * Marriage Certificate * Death Certificate * Illegible DD Form 214 (Report of Separation from the Armed Forces of the United States) 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 FSM's complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the FSM's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The complete facts and circumstances surrounding his enlistment and discharge are not available for review with this case. Additionally, the FSM's DD Form 214 is largely illegible. However, some information can be gleaned from this form: * he enlisted in the Regular Army and held an infantry specialty * he served in Korea with the 21st Infantry Regiment, 24th Infantry Division * he was awarded or authorized the Combat Infantryman Badge, National Defense Service Medal, and Korean Service Medal with three bronze service stars * he was discharged in 1953 under the provisions of Army Regulation (AR) 615-368 (Enlisted Men – Discharge – Unfitness) with his service characterized as undesirable 4. His reconstructed records contain Special Orders Number 293, issued by Headquarters, 2053rd Army Service Unit Personnel Center, Fort Meade, MD on 16 December 1953, ordering his discharge from active duty in the rank/grade of private/E-1, on 17 December 1953, under the provisions of AR 615-368, with an undesirable discharge. 5. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 6. The applicants provide a letter, dated 24 October 2014, in which they state: a. This letter is written by his widow as well as his mentally challenged daughter. Beginning in 1987 to present date, they applied for benefits through the VA and were denied. All of the requested documentation was provided along with a Certificate of Honorable Service provided by the U.S. Army. The FSM served his country from 1950-1953 until his separation from military service honorably and proudly. He served during the Korean War, in which he suffered physical and psychological trauma to which he never fully recovered up to his death in 1992. During wartime, he endured enemy explosives ejecting him from his cover position (he was blown out of a foxhole) at which time he received head and shrapnel wounds. b. He personally witnessed all of his young fellow comrades in his group, especially his best friend "Harry" being blown up to bloody pieces in front of him. This memory made him feel guilty for being the sole survivor among his comrades and caused him to possess a death wish through the years. That memory kept replaying itself in the FSM's mind and became vividly tangible in his last days. He was briefly held as war criminal and he vehemently refused to tell anyone what he endured when asked. For service to his country, he received the Infantry award, two Bronze Star Medals, but had not been awarded a Purple Heart for his wartime injuries, a promise to deliver which was never kept. c. When he returned to the United States after his tour of duty, he received absolutely no treatment for the psychological effects of close combat. He was left to fend for himself, constantly engaging in psychotherapy on his own without the availability or assistance from the Army, the VA, or any other agency or organization that were in place. Because of the psychological damages associated with his wartime activities, he temporarily lacked the mental capacity to follow military protocol especially as he was constantly nagged by his domineering grandmother. She kept [nagging him] regarding a criminal issue dealing with his youngest brother (age 14) in Philadelphia. d. What his family neglected to realize is that he entered the Army with the wish of giving his younger brothers "a positive male role model" to follow and to escape the hardships of trying to be the "father figure." He felt he was responsible for care of his four brothers as his mother chose to live a separate life leaving her sons alone many times, hungry for long stretches of time. Lacking direction, a maturity which comes with age, and a male authoritative figure in his life, he felt obligated to surrender to his grandmother's wish and go to the aid of his family in the only way he knew how, he was charged with absent without leave (AWOL). e. With the lack of support for the FSM, their family had to endure the actions and behaviors of a man with a severe case of post-traumatic stress disorder (PTSD), a diagnosis that came many years later by his psychiatrist, Dr. We-- of the former Mental Institute of Pennsylvania. The Board should favorably consider allowing her and their daughter access to the family benefits which the FSM had earned as a Soldier as he sacrificed his own health and safety for the country that he loved and served. 7. The Army Review Board Agency's Clinical Psychologist reviewed the FSM's case and rendered an opinion. a. The clinical psychologist referenced the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, and the Memorandum by the Secretary of Defense, dated 3 September 2014, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder. The clinical psychologist also referred to Army Directive 2014-28, Requests to Upgrade Discharge by Veterans Claiming Post­ Traumatic Stress Disorder, dated 3 November 2014; AR 40-501 (Standards of Medical Fitness), dated 14 December 2007 with revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, with revision, dated 6 September 2011. b. The FSM was administratively separated from the U.S. Army on 17 December 1953 under dishonorable conditions by reason of misconduct. His history of misconduct is currently unavailable for review. Per his family, his personnel files were destroyed in the National Personnel Records Center fire of 1973. c. In accordance with Army Directive 2014-28 (subject: Requests to Upgrade Discharge by Veterans Claiming PTSD), and based on the information available for review at this time, the FSM's record reasonably supports that PTSD existed at the time of his military service. However, because his history of misconduct is currently unavailable for review, it is not possible at this time to establish whether PTSD was a possible mitigating factor for the misconduct that resulted in his military discharge. d. In accordance with Title 10, U.S. Code, section 1177 (Members diagnosed with or reasonably asserting PTSD or traumatic brain injury: medical examination required before administrative separation), the requirement for a behavioral health exam prior to separation from service was not applicable in the FSM's case because he was discharged from the military on 17 December 1953. It was not until 28 October 2009 that Title 10, U.S. Code, section 1177, was signed into law. 8. The family was provided with a copy of this advisory opinion and was granted an extension to allow them to submit a rebuttal or any comments in response to the advisory opinion. However, they did not respond. REFERENCES: 1. AR 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. This regulation provided for the discharge of individuals who had demonstrated their unfitness by evidence of habits and traits of character manifested by misconduct. Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct. An undesirable discharge was normally considered appropriate. 2. AR 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service. The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under AR 615-369 (Enlisted Personnel – Discharge – Inaptitude or Unsuitability)) without referral to another board might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted. As examples, such circumstances would apply where the cause of unfitness had been minor relative to the length of efficient service or where there had been a definite effort at self-control or where an individual had distinguished himself by an act of heroism during his current period of service which in itself reflected great credit on the individual and the military service. 3. AR 635-200, currently in effect, governs the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. b. Paragraph 3-7b provides that 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. DISCUSSION AND CONCLUSIONS: 1. The complete facts and circumstances surrounding the FSM’s discharge are not available for review with this case. However, his DD Form 214 and separation order show he was issued an undesirable discharge on 17 December 1953 under the provisions of AR 615-368. 2. It appears the FSM had a history of misconduct that led his chain of command to recommend his separation. It is presumed that his administrative separation was accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights. It is also presumed that the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record during the period under review. //NOTHING FOLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001328 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2