IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150003244 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 IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150003244 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. IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150003244 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 the under other than honorable conditions characterization of service of her late husband, a former service member (FSM), to honorable. 2. The FSM states on a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 30 July 2014, the following: a. When he returned from his deployment in Vietnam in May 1969 he began experiencing some emotional and psychological difficulty adjusting to normal military service that included his personal life as well. He and his wife were experiencing some serious marital issues in their home life and with their three children. His inability to adjust affected his military duty performance and his ability to work in conjunction with his wife to address and solve their marital issues. He should have sought counseling; however, at the time he did not accept the fact that he had any problems. It was everyone else. He felt that nothing was wrong with him. This was the sad truth for many veterans. He was no different. b. He now knows and accepts that he played a large part in the failure of his marriage and did not harbor any ill will towards his wife. He accepted responsibility for his inability to save his marriage. He believes that the combination of his emotional distress and their marital issues aided in his inability to perform his duties to the high standards of the Army. Therefore, he was unsuitable for service. He is very proud of his service to his country and he never denied his service. c. He has made many mistakes in his life and will make many more before his life is over. His military service was not one of them, even though they have been told differently over the years. He is currently at a point in his life where he is facing a hard battle with cancer. He is hoping that the bulk of his service and his first honorable discharge will show that he was able to do a fair job in his Army duties. His attitude and job performance changed after he returned from Vietnam. 3. The applicant states she is continuing the course of action her husband began. He passed away awaiting acknowledgement from the same people he put his faith, body, and soul into. He watched her battling with the Army and VA with receiving the run around and searching for additional paperwork that was already forwarded. She spent every day after his cancer diagnosis, which was the result of his Vietnam tour, attempting to make him comfortable and as pain free as possible. She currently has a mountain of medical bills. He was there when he was required in Vietnam. The one Vietnam tour totally changed him. He was never the same mentally, emotionally, or socially after his return. He dealt with never being able to hold a steady job or have a healthy relationship with his former friends or family. She is currently grieving and feels overwhelmed with her loss and the fact that her husband was never afforded the benefits due him as a Vietnam Veteran. 4. The applicant provides copies of the FSM's 2014 medical records and his death certificate. 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 FSM enlisted in the Regular Army (RA) on 17 February 1964 and he held military occupational specialty (MOS) 17D (Flash Ranging Crewman). He served in Korea from 1 July 1964 through 17 July 1965. 3. He was promoted to pay grade E-5 on 23 April 1966. 4. He was honorably discharged on 9 May 1966 for the purpose of immediate reenlistment. He was credited with completing 2 years, 2 months, and 23 days of total active service. 5. He reenlisted in the RA on 10 May 1966 for 6 years and continued to hold MOS 17D. He served in Germany from 1 February 1967 through 5 March 1968. 6. On 6 June 1967, he accepted NJP under Article 15, UCMJ, for failing to make formation. 7. He served in Vietnam from 10 May 1968 through 9 May 1969. 8. He accepted NJP under Article 15, UCMJ, on: * 19 January 1971 for failing to go to his appointed place of duty and disobeying a lawful order * 1 March 1971 for failing to go to his appointed place of duty; his punishment included a suspended reduction to pay grade E-4 9. On 19 April 1971, his suspended reduction to pay grade E-4 was vacated and he was reduced accordingly. 10. Additionally on 19 April 1971, the FSM's company commander recommended the FSM be separated under the provisions of Army Regulation 635-212 (Unfitness) with an undesirable discharge. He stated the applicant had unsuccessfully been transferred between Article 15 jurisdictions within the battalion with no improvement. He recommended the applicant be discharged because of inefficiency, indebtedness, and continuous writing of unfunded checks. 11. After consulting with counsel, on 19 April 1971 the FSM acknowledged receipt of the proposed separation action. He also acknowledged he could receive an undesirable discharge 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. 12. He received counseling between 16 November 1970 through 21 April 1971 for his recurring letters of indebtedness. 13. On 27 April 1971, he received counseling from a chaplain on his possible separation under Army Regulation 635-212. The chaplain stated the FSM had a spotless record until the financial problems occurred. The FSM had intended to make the Army a career as was evident by the fact he had served 7 years on active duty. He did not plan to oppose the separation action. His personal observation was that the FSM's previous unit should have referred him to a professional family counselor and he should have received help with budget planning. That action could have avoided the loss of a noncommissioned officer. For the sake of the FSM and the welfare of his family it would be best to separate him as soon as possible. 14. On 30 April 1971, he accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty. His punishment included a reduction to pay grade E-3. 15. He was reported absent without leave on 5 May 1971 and returned to duty on 8 May 1971. 16. On 2 July 1971, the separation authority approved the FSM's discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1. 17. He was discharged accordingly on 8 July 1971. He was credited with completing 7 years, 4 months, and 17 days of total active service with 5 days of time lost for being AWOL. His service was characterized as under other than honorable conditions. 18. There is no evidence the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 19. The applicant provides copies of the FSM's medical documentation showing he was diagnosed with cancer, admitted to the hospital, and underwent a thoracic laminectomy to resect an epidural mass on 15 March 2014. He was admitted to the hospital for progressive back pain for 2-3 months, with paraplegia and urinary incontinence on 20 March 2014. 20. The FSM died on 9 September 2015. 21. In an advisory opinion, dated 8 April 2016, the Clinical Psychologist, Army Review Boards Agency (ARBA), reiterated the FSM's record of service and misconduct pertaining to his indebtedness. The ARBA official stated in accordance with Army Directive 2014-28 (Subject: Requests to Upgrade Discharge by Veterans Claiming Post-Traumatic Stress Disorder (PTSD)) and based on the information available for review at this time, the FSM's record did not reasonably support PTSD or any other behavioral health condition existed at the time of the FSM’s military service. The current requirement for a behavioral health examination prior to separation from service became law on 28 October 2009 and was not applicable in the FSM's case because he was discharged from the military on 8 July 1971. 22. The advisory opinion was provided to the applicant on 12 April 2016 for acknowledgement/rebuttal. She did not reply. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation stated an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a states 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 acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 3-7b states 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. 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 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 had mitigated the misconduct that caused the under other than honorable condition characterization of service. DISCUSSION: 1. The FSM's unit commander stated that the FSM had unsuccessfully been transferred between Article 15 jurisdictions within the battalion with no improvement. He recommended the FSM's discharge due to his inefficiency, indebtedness, and continuous writing of unfunded checks. After consulting with counsel, the FSM acknowledged the proposed separation action under the provisions of Army Regulation 635-212. The separation authority approved his discharge and he was discharged accordingly. 2. There is no evidence of record and the applicant provided none showing PTSD or any medical conditions prevented the FSM's satisfactory completion of his second term of enlistment. She also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would qualify him to an upgrade of his discharge. The characterization of his discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time. 3. Without evidence to the contrary, it must be presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. 4. The FSM's contentions that his service and first honorable discharge should be considered in upgrading his discharge were carefully considered. The quality of his service prior to misconduct does not support or show that the separation process and/or the character of service he received were in error or unjust. His second term of enlistment did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003244 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003244 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2