BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160008117 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: 12 September 2017 DOCKET NUMBER: AR20160008117 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: 12 September 2017 DOCKET NUMBER: AR20160008117 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 that his record be updated. 2. The applicant states, in effect, he was allowed to go home to take care of his sick mother and he was told that he would be discharged so there was no need to come back. He contends that he never received a DD Form 214 (Certificate of Release or Discharge from the Active Duty). He is currently receiving treatment for post-traumatic stress disorder (PTSD) which began during his Vietnam tour. He needs his record updated to receive benefits. 3. The applicant provides a Report of Psychiatric Evaluation, dated 22 January 1971. 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. A DD Form 47 (Record of Induction) shows the applicant completed a medical examination and he was found acceptable for induction into the armed forces. On 14 April 1967, he was inducted into the Army of the United States. He completed the training requirements and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman). 3. The specific facts and circumstances of his discharge proceedings are not available for review; however, his DA Form 20 (Enlisted Qualification Record) shows: * he served in Vietnam from 14 September 1967 to 13 September 1968 * the highest rank/grade he held was sergeant (SGT)/E-5 (temporary 14 August 1968) * he was absent without leave (AWOL) from 11 March 1969 to 11 January 1971, which was 731 days 4. A DA Form 19-32 (Military Police Report), dated 11 January 1971, shows the applicant was apprehended in Baltimore, MD, and he was transported to the Provost Marshal’s Office, Fort George G. Meade, MD. On the same date he was assigned to Company B, Special Processing Detachment, Fort George G. Meade. 5. On 22 January 1971, special court-martial charges were preferred against him for the period of AWOL from 11 March 1969 to 11 January 1971. 6. The applicant provides, and his records contain, a Report of Psychiatric Evaluation that shows: a. The applicant was evaluated on 22 January 1971 while assigned to the Fort Meade stockade. He was diagnosed with “depressive reaction, situational type, anxiety state.” The applicant reported that his mother was dying of multiple sclerosis, his father had died 3 or 4 years ago, and his wife had kidney problems and needed an operative procedure. He also had a young son that his wife was having problems caring for. The applicant stated that he had never been hospitalized for psychiatric reasons, but he was seen by a psychiatrist while in the RVN for his nerves. b. His mental examination revealed he appeared somewhat lethargic. He was concerned about “swelling inside.” He claimed this swelling made it difficult for him to breathe and that he experienced blackouts. He was preoccupied with his family's health problems. His sleeping and eating patterns had been disturbed and in general he presented with the overall effect of depression. c. He was cleared for all administrative and judicial disposition as deemed fit by his chain of command. It was determined that he was quite depressed and he had been given a prescription for anti-depressant medication and a follow up with Mental Hygiene Consultation Service. The physician recommended the applicant seek legal advice concerning the possibility of some type of compassionate discharge. 7. The Army Review Boards Agency’s Senior Medical Advisor reviewed documents provided by the applicant and the available military and Department of Veterans Affairs medical records. He stated: a. The applicant did meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as applicable to the applicant’s era of service. b. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. c. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. However, if additional medical information/records and/or the official separation documents become available in the near future, this medical advisory may be amended as needed. 8. The advisory opinion was forwarded to the applicant for comment. No response was received. 9. His record is void of a record of trial, court-martial orders, discharge orders, or a DD Form 214. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that the individual must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. The individual must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization 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 so meritorious that any other characterization would be clearly inappropriate. c. 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. 3. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of the Army (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their 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. 4. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Board of Correction of Military/Naval Records (BCM/NR) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC (emphasis added) and who have 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. 5. Service Boards for Correction of Military/Naval Records are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. DISCUSSION: 1. The applicant requests, in effect, that he be issued a DD Form 214. 2. His record is void of a DD Form 214 or discharge documents pertaining to the disposition of his court-martial charges. Lacking evidence to the contrary and based on a preponderance of the evidence, it is highly probable the applicant elected discharge in lieu of court-martial. Unfortunately, there is insufficient evidence to reconstruct or reissue a DD Form 214. 3. The applicant is advised that should he locate evidence showing the reason for and characterization of his discharge he should reapply to the Board for relief and include any medical records that show he was diagnosed with or treated for PTSD subsequent to his 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) AR20160008117 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008117 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2