IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150005913 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 April 2016 DOCKET NUMBER: AR20150005913 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 April 2016 DOCKET NUMBER: AR20150005913 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 to honorable of his general discharge under honorable conditions * reinstatement of his rank, which is, in effect, a request for clemency, as his reduction from the highest rank held (staff sergeant (SSG)) resulted from a special court-martial conviction 2. The applicant states, in effect: * he served his time and his discharge should reflect his service * ever since his first tour in Vietnam, his behavior changed; he was having flashbacks and nightmares without knowing what was going on * while on his second tour in Vietnam, it was hard for him to figure out the unit he was with; he was always looking for the men with whom he served * his dissociation would only stop when he used alcohol * he did not realize he had been discharged until the President brought the troops home; he thought he was a prisoner of war * he was suffering from chronic and severe post-traumatic stress disorder (PTSD) at the time of his discharge; he was incapable of making sound judgments and lacked the capacity to reason right from wrong * he lived on the street until he was put into an alcohol rehabilitation program sponsored by the Department of Veterans Affairs (VA) * 10 years after that he started PTSD treatment, life is still a day-to-day struggle; he is now 70 years old * he never loved anything like he loved being an infantryman and a squad leader * while he understands his behavior was unbecoming of a noncommissioned officer, he believes the extenuating circumstances presented by PTSD, and with it the inability to make sound judgments, should overcome his behavior * when he dies, he wishes to see the rank of SSG on his death certificate 3. The applicant provides no additional documentary evidence. 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 applicant was inducted into the Army of the United States on 2 April 1964. His military occupational specialty was 11B (Light Weapons Infantryman) and he served 6 months and 6 days in Vietnam. 3. On 22 March 1966, in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for striking a fellow Soldier with a .45 caliber pistol. 4. He was honorably released from active duty on 27 March 1966. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 11 months, and 26 days of service. 5. Following a 33-day break in service, he enlisted in the Regular Army on 28 April 1966. He was initially assigned to a training unit at Fort Dix, NJ. 6. On 5 July 1966, while in basic combat training, he accepted NJP under the provisions of Article 15 of the UCMJ for being drunk and disorderly, assaulting a military policeman, and destroying government property. 7. He served in Vietnam from 8 August 1966 to 20 October 1967 and Korea from 31 July 1968 to around June 1969. During his overseas service, he accepted NJP under the provisions of Article 15 of the UCMJ on/for: * 1 January 1967, Vietnam, being apprehended at an off-limits location * 18 January 1967, Vietnam, being drunk and disorderly; he appealed but his appeal was denied * 15 September 1968, Korea, being drunk in a public place while in uniform; was found in the local community without a shirt, hat, or shoes; he failed to go to his place of duty at the time prescribed (FTR) * 20 November 1968, Korea, committing the offense of FTR * 20 January 1969, Korea, failing to wear his uniform while off-post, being off-post without permission, and failing to have a DD Form 345 (Armed Forces Liberty Pass) in his possession while on pass 8. On 31 March 1967, while serving as a specialist four in Vietnam, he was convicted by a special court-martial of one charge and two specifications of failing to obey an order not to leave the base camp/company area; one charge and specification of resisting apprehension by military policemen; and one charge and specification of assault by pointing a loaded weapon at a SSG: a. The court sentenced him to confinement at hard labor for 4 months, forfeiture of $50 per month for 4 months, and reduction to private (PVT)/E-1. The convening authority approved the sentence on 5 April 1967. b. Special Court-Martial Order Number 15, dated 8 June 1967, issued by the 196th Light Infantry Brigade, suspended the unexecuted portion of the sentence until 15 August 1967. 9. On 22 March 1969, while serving as a SSG in Korea, he was convicted by a special court-martial of the charge and two specifications of breaking restriction, one specification of appearing off-post in a fatigue uniform while in an off-duty status, and one specification of being disorderly in camp; and the charge and its specification of resisting apprehension by Armed Forces policeman. a. The court sentenced him to 6 months confinement at hard labor and forfeiture of $70 per month for 6 months. The convening authority approved the sentence on 5 June 1969. b. Special Court-Martial Order Number 702, dated 12 August 1969, issued by the U.S. Army Correctional Training Facility, Fort Riley, KS, suspended the unexecuted portion of the sentence until 25 September 1969. The suspended sentence was remitted by Special Court-Martial Order Number 821, dated 20 September 1969, issued by the U.S. Army Correctional Training Facility. 10. He was released from active duty with an under honorable conditions (general) characterization of service on 21 November 1969. His DD Form 214 shows: * his rank/grade is PVT/E-1 * the authority is Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Separation Program Number (SPN) 201 (Expiration of Term of Service (ETS)), and the reason is ETS * he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and two overseas bars 11. There is no indication in his service record he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 12. On 29 May 2015, the Case Management Division of the Army Review Boards Agency requested the applicant provide medical documents that supported his contention he had PTSD. As of 25 March 2016, the applicant had not responded. REFERENCES: 1. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for administrative separations of enlisted personnel. It stated: a. Individuals who have enlisted will be discharged or released from active duty (ETS) on the date upon which he or she completes the period for which enlisted. b. Paragraph 1-9d (Honorable Discharge) outlines the criteria for an honorable discharge and states it is a separation with honor. (1) Issuance of an honorable discharge is conditioned upon proper military behavior and proficient performance of duty during the current enlistment. Where there are infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). (2) A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15, UCMJ. It is the pattern of misconduct and not the isolated instance which should be considered. 2. Article 58a, UCMJ, states, where an approved court-martial sentence of an enlisted Soldier includes confinement, that Soldier will be reduced to PVT/E-1 effective the date of the convening authority's approval. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 4. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. a. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. b. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. c. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." d. Based on extensive research conducted by the medical community, the Department of the Defense has acknowledged that, in some cases, an undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for an adverse discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. DISCUSSION: 1. The applicant requests upgrade of his general discharge under honorable conditions to an honorable discharge. He also, in effect, requests clemency by reinstating his rank to SSG following a reduction which resulted from a court-martial conviction. 2. The evidence of record shows he was permitted to ETS, despite a clear pattern of misconduct which began in 1966 and extended to a second court-martial conviction in 1969. While the number and scope of his misconduct throughout his active service might have, for other Soldiers, provided a basis for an adverse administrative separation, the applicant's character and/or the quality of his service were apparently deemed sufficient to simply allow him to be released from active duty instead of being adversely discharged. 3. With regard to his separation, all requirements of law and regulation were met. As to his rank reinstatement, by law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Clemency in this case does not appear to be appropriate. 4. Given that the applicant provides no evidence which might warrant the Board to grant clemency, and his pattern of misconduct throughout his period of active service was not consistent with the requirements to receive an honorable discharge, there does not appear to be sufficient basis upon which to grant the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005913 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005913 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2