IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009766 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009766 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * voiding the applicant’s DD Form 214 for the period ending 11 February 1971 * issuing a new DD Form 214 showing he was discharged with a general (under honorable conditions) characterization of service and his rank/grade as "SGT/E-5" with a date of rank of 26 March 1970 * adding to his DD Form 214: * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) * Marksman Marksmanship Qualification Badge with Tank Bar * Korea Defense Service Medal * Meritorious Unit Commendation * Vietnam Service Medal with one silver service star and one bronze service star * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to fully 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. IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009766 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 under other than honorable conditions discharge to an honorable discharge and restoration of the highest rank allowable under current laws and regulations. 2. The applicant states: a. He is requesting an upgrade of his discharge under the Secretary of Defense memorandum, dated 3 September 2014, pertaining to Vietnam veterans with a diagnosis of post-traumatic stress disorder (PTSD). b. He was not drafted, but enlisted in the Regular Army (RA) in pay grade E-1. Beginning in basic training, he was an exemplary Soldier exceeding standards and obtaining recognition and awards. He was promoted to pay grade E-2 upon completion of advanced individual training. His first duty station was Korea. He specifically reenlisted for Vietnam as a station of choice. c. During his assignment in Vietnam, he continued to excel and was promoted to pay grades E-5 and E-6 serving as a tank commander. He was engaged in direct combat and awarded the Bronze Star Medal. He quickly became a "fast tracker," having been promoted within roughly 12 months from E-1 to E-5 and subsequently to staff sergeant/E-6. d. He was reassigned from Vietnam and stationed at Fort Polk, LA. At this point in his career, having just come out of a combat theater, he began to experience issues of PTSD and adjustment disorder. He believes his reassignment, demotion, treatment like a second-class citizen, and reverse discrimination eventually led to his fall from grace and "fast tracking" military career. e. Prior to the September 2014 memorandum, he had always been bothered by his discharge. He has continued to go above and beyond in an attempt to correct his past, to include applying to the Army Discharge Review Board (ADRB). He requested and received all of his personnel records available from the National Personnel Records Center to support his request to upgrade his discharge. Subsequent to his 1971 separation, he has had no encounters/arrests/records with law enforcement. His request should be considered based on his military accomplishments and awards prior to the minute portion of his military career at Fort Polk, which was subsequent to direct combat action and the residuals of war. His exemplary post-service career in law enforcement should also be considered. If his character of service is favorably considered, he also requests his grade and rank be restored. 3. The applicant provides his ADRB package, a Memorandum for Secretaries of the Military Departments, and a VA Rating Decision dated 12 September 2014. 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. 2. The applicant enlisted in the RA on 21 November 1966 and he held military occupational specialty 11E (Armor Crewman). He served in Korea from 26 April 1967 to 14 March 1968. He was honorably discharged on 5 March 1968, for the purpose of immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), lists the following awards: * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) * Marksman Marksmanship Qualification Badge with Tank Bar 3. He reenlisted in the RA on 6 March 1968. He was assigned to duty in Vietnam with Company B, 1st Battalion, 69th Armor, from 1 May 1968 to 20 November 1969. 4. He was promoted to pay grade E-6 (Temporary) on 25 February 1969. General Orders Number 6300 issued by the 4th Infantry Division awarded the applicant the Army Commendation Medal for meritorious service during the period November 1968 to November 1969. 5. On 20 March 1970, he was convicted by special court-martial of one specification of being absent without leave (AWOL) from 24 January to 20 February 1970. The court sentenced him to a reduction to pay grade E-5 and a forfeiture of $100.00 pay per month for 5 months. 6. On 26 March 1970, the convening authority ordered the sentence duly executed. Accordingly, he was reduced to pay grade E-5 on the same date. 7. On 16 December 1970, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Detachment, Fort Ord, CA, charging the applicant with one specification of being AWOL from 26 June to 7 December 1970. On the same date, court-martial charges were preferred. 8. On 12 January 1971, 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 in lieu of trial by court-martial. He acknowledged that counsel fully advised him that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) (court-martial) 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. 9. On 12 January 1971, the applicant's chain of command recommended approval of the applicant's request and recommending issuance of an Undesirable Discharge Certificate. 10. On 1 February 1971, the separation authority approved the applicant’s request and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1. 11. He was discharged accordingly on 11 February 1971. He completed a total of 3 years, 8 months, and 10 days of active service and had 191 days of time lost. His service was characterized as under other than honorable conditions. His DD Form 214 lists these awards: * Bronze Star Medal * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal with Device (1960) * Expert Marksmanship Qualification Badge with Rifle Bar 12. Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) lists the: * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) * Marksman Marksmanship Qualification Badge with Tank Weapon Bar * Vietnam Service Medal * Vietnam Campaign Medal with Device (1960) * two overseas service bars * Bronze Star Medal * Army Commendation Medal 13. On 8 July 1986, the ADRB denied his petition for an upgrade of his discharge. 14. On 26 August 1986, he was issued a DD Form 215 (Correction to DD Form 214) adding the Army Commendation Medal to his DD Form 214. 15. He provided a VA Rating Decision, dated 12 September 2014, showing he was granted a 70 percent service-connected rating for PTSD, with major depression, effective 31 December 2007. His combined rating for all medical issues/conditions was 90 percent, effective 1 November 2013. The VA examiner noted the applicant's PTSD had been established as directly related to military service. The applicant's lay testimony was adequate to establish occurrence of the claimed stressor that was consistent with the places, types, and circumstances of service. 16. On 21 September 2016, an advisory opinion was provided by the clinical psychologist, Army Review Boards Agency (ARBA). The ARBA psychologist referenced the Diagnostic and Statistical Manual (DSM), 5th Edition; AR 40-501 (Standards of Medical Fitness), dated 4 August 2011; and AR 635-200, dated 6 September 2011. The ARBA psychologist stated: a. On 18 May 2015, the applicant requested that the Board upgrade his discharge based on PTSD, claiming his undesirable discharge was related to his mental health. The applicant contended that during his service in Vietnam he experienced many fire fights, major battles, saw fellow service members killed, and had survivor's guilt. Upon being reassigned from Vietnam to Fort Polk, LA, he began to experience adjustment difficulties and appeared to exhibit symptoms of PTSD. Military documents indicate the applicant, without authority, did absent himself from 24 January to 20 February 1970 and from 26 June to 7 December 1970. He attributed going AWOL to difficulty coping with Vietnam experiences, family and financial stressors, adjustment difficulties due to fear of being viewed as a "baby killer," and occupational stressors due to feeling degraded after the loss of rank. b. A VA Letter, dated 12 September 2014, indicated service-connection for PTSD with major depressive disorder was granted and the applicant was assigned a disability rating of 70 percent effective 31 December 2007. There was no available documentation showing he received continued treatment through the VA. c. The ARBA psychologist was asked to determine if there was a nexus between the PTSD diagnoses contained in documentation and the misconduct that resulted in the applicant's discharge. This opinion was based on the information provided to the Board as the Department of Defense electronic medical record (AHLTA) was not in use at the time of his service. Based on the information available for review at the time, it was determined that there was a nexus between his behavioral health condition and his offenses which led to his separation from the Army. d. Supporting medical documentation regarding diagnoses of PTSD and depression was provided by the VA indicating the applicant had been diagnosed with combat-related PTSD with depression, conditions which could cause avoidant behaviors such as being AWOL. Given that PTSD was not recognized as a diagnosis during the applicant's time in service, it was unlikely that he or anyone else recognized and attributed his misconduct to PTSD or related conditions. Despite post-military service achievements, PTSD symptoms have continued to negatively impact his mood and functioning. 17. The advisory opinion was provided to the applicant on 23 September 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: 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 that 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 condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. When a Soldier is discharged under other than honorable conditions, the separation authority will direct immediate reduction to the lowest enlisted grade. 2. 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. 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 considered 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 individuals’ 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 do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. Liberal consideration will 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. 4. AR 600-8-22 (Military Awards) provides Army policy, criteria, and administrative instructions concerning individual military decorations. a. The Korea Defense Service Medal is awarded to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea from 28 July 1954 to a date to be determined by the Secretary of Defense for 30 consecutive or for 60 nonconsecutive days. b. A bronze service star is worn on the appropriate service ribbon, to include the Vietnam Service Medal, for each credited campaign. A silver service star is authorized in lieu of five bronze service stars. In pertinent part, these are the named campaigns [during the applicant’s period of service in Vietnam]: * Vietnamese Counteroffensive Phase IV (2 April - 30 June 1968) * Vietnamese Counteroffensive Phase V (1 July - l November 1968) * Vietnamese Counteroffensive Phase VI (2 November 1968 – 22 February 1969) * Tet 69/Counteroffensive (23 February - 8 June 1969) * Vietnam Summer - Fall 1969 (9 June - 31 October 1969) * Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970) 5. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. This pamphlet shows the unit to which the applicant was assigned was cited for the following awards: * Meritorious Unit Commendation for the period 7 April – 20 October 1968 by Department of the Army General Order (DAGO) Number 42, dated 1969 * Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 August 1967 – 28 July 1969 by DAGO Number 38, dated 1970 * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 August 1967 – 31 October 1969 by DAGO Number 53, dated 1970 DISCUSSION: 1. The applicant was charged and acknowledged he had committed an offense punishable under the UCMJ by court-martial with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu by court-martial. He also acknowledged that he could be furnished a discharge under other than honorable conditions. The separation authority approved his discharge and he was separated accordingly. 2. 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. 3. The ARBA psychologist determined there was a nexus between his behavioral health condition and his offenses which led to his separation from the Army. She noted that, given that PTSD was not recognized as a diagnosis during the applicant's time in service, it was unlikely that he or anyone else recognized and attributed his misconduct to PTSD or related conditions. Despite post-military service achievements, PTSD symptoms have continued to negatively impact his mood and functioning. 4. At the time of his discharge, PTSD was largely unrecognized by the medical community and Department of Defense (DOD). However, 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. 5. If the Board recommends upgrading his discharge based on the evidence presented, then his rank may be restored to pay grade E-5, the rank he held after his reduction by sentence of special court-martial. There is no evidence of error in the court-martial proceedings that led to his reduction to pay grade E-5. The Board may recommend, as clemency, correction of the record to show he was discharged in pay grade E-6. 6. A fully honorable discharge is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise meritorious. His previous court-martial conviction and cumulative time lost diminished the quality of his service. Weighing the aforementioned factors against his misconduct, his overall service does not appear to have met acceptable standards of conduct required for an honorable discharge. 7. Should the Board favorably consider the applicant’s request, there are additional awards that may be added to his 1971 DD Form 214. a. He was awarded the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) and Marksman Marksmanship Qualification Badge with Tank Bar during his period of military service. b. He met the criteria for the Korea Defense Service Medal which was established after his separation from the Regular Army. Based on participating in six campaigns while serving in Vietnam, he is authorized one silver service star and one bronze service star to be affixed to his already-awarded Vietnam Service Medal. Orders awarded his unit the Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for periods coinciding with his service in the unit. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009766 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009766 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2