ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 August 2019

	DOCKET NUMBER:  AR20160018633


APPLICANT REQUESTS:

* she be compensated for the wrongful denial of a disability retirement to her husband
* the Former Service Member’s (FSM) military record be corrected to show his service in Vietnam, including an incident in which he was a sole survivor who had to call in his own rescue

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Stressor Letter
* Death Certificate
* Correspondence

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states her deceased husband’s military records failed to record his exposure to terrorist attack by guerrillas in a jungle environment.  He was a sole survivor who had to call in his own rescue and wait in fear until the rescue arrived.  He was denied compensation for service in which he lived in fear of terrorism.  His resulting post-traumatic stress disorder (PTSD) prevented him from ever engaging in meaningful work that might have supported his estate.  His surviving spouse should be compensated for this wrongful denial and his service.    

3.  The applicant provides:

     a.  A four-page “Stressor Letter” from her husband, dated 4 December 2001, submitted in connection with his attempts to establish entitlement to service-connected disability based on PTSD through the Department of Veterans Affairs (VA).  The letter begins with a chronological recounting of traumatic events related to his duties as an Army photographer as follows:

* On one occasion he was sent to photograph the body of a Japanese worker whose head had been crushed by a dump truck.  He did the job and then was sickened to see the reprints treated as entertainment.
* He met a wonderful young man who became his only friend.  His friend took his place on a flight to Vietnam and as he was getting off the plane a sniper shot and killed him.  He suffered survivor’s guilt since that time.
* Upon being assigned to Okinawa, he was informed there would be no record of his activities.  His duties included providing girls for visiting officers and trading on the black market for liquor, drugs, refrigerators, and freezers.  He was bewildered and disillusioned, because he had to become a pimp and a pusher.  He was afraid of his own leadership and resorted to taking photographs of the officers with prostitutes, so he could protect himself through blackmail if necessary.  
* He was sent out in civilian clothes to photograph demonstrators at U.S. facilities.  His photographs were then passed to up through intelligence channels in order to potentially target the demonstrators as enemies.  
* He was sent to Vietnam to photograph the dead on both sides.  The thought of the smell disgusts him.  Some of the dead looked like they were simply sleeping and others were torn beyond recognition.  The worst was a ditch/latrine with Vietnamese heads in it.  
* On one trip he landed in a jungle clearing to await transportation.  He was told to sleep for a bit on a cot behind some boxes.  When he awoke, he discovered that everyone had been killed by blade.  He radioed for help and was told to be quiet and wait.  He was later told that it was a random attack and not part of the conflict and that he should just forget it because he was not in that country.  
* He never made it back home, because the homeland he knew was gone.  He received no debriefing or counselling upon his return to civilian life.  When he stepped off the tarmac in his uniform, he was spat on.  He was shunned for having served in the military.  His family received threatening calls that did not stop until he moved away.  He lost his future and had to deny his past.  
* He concludes with descriptions of the lingering negative impact his military service has had on his life and the hope that the VA can help him rid himself of the depression, headaches, and anger that have left him afraid to be human again.  

     b.  A Death Certificate showing her husband died in Austin, Texas on 18 July 2015. 

     c.   A letter from the National Personnel Records Center, dated 3 October 2016, informing applicant that it was forwarding her DD Form 149 to this Board, because it has no authority to review and correct military records. 
 
4.  A review of the FSM’s service record shows:  

     a.  He enlisted in the Regular Army on 21 June 1962.

     b.  His military occupational specialty was 841.10 “Photographer.”

     c.  He spent 1 year, 7 months and 14 days assigned to the United States Army Pacific (USARPAC) serving in Tokyo, Japan and at Kadena Air Force Base, Okinawa Japan.  

     d.  Both his conduct and efficiency ratings were excellent throughout his service.

     e.  His record is void of any direct reference to service in Vietnam.

     f.  On 29 March 1965, he was honorably relieved from active duty and transferred to the United States Army Reserve in order to serve the remainder of his obligation.

5.  On 5 July 2017, the Army Review Boards Agency staff psychiatrist rendered an advisory opinion in the processing of this case.  Based on a thorough review of applicant’s husband’s available records, she opined: 

     He had no documented behavioral health history while on active duty.  There is no record of any recurrent or prolonged psychiatric hospitalizations or duty limiting psychiatric profiles.  His psychiatric profile while on active duty was documented several time as S1-no psychiatric disability.  On two occasions after returning from his USARPAC tour, in conjunction with continued service in the Army National Guard, he denied having PTSD symptoms.  Specifically, he indicated he did not have frequent trouble sleeping, did not have frequent or terrifying nightmares, and did not suffer from depression, excessive worry, loss of memory, or nervous trouble of any sort.  There is no indication that he failed to meet retention standards.  Accordingly, there is insufficient evidence to support applicant’s contention that her husband suffered from PTSD while on active duty and as such should have received military medical compensation.   

6.  On 6 July 2017, the advisory opinion was forwarded to the applicant for acknowledgment and/or response.  She did not respond.  
 





BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions, the FSM’s medical concerns, and the medical advisory was carefully considered.  The medical advisory official found there was no boardable medical condition during the FSM’s period of service.  The applicant was provided the advisory for an opportunity to rebut; however, she did not respond.  The FSM’s record shows he was assigned to Japan, and is absent any evidence showing he served in the Republic of Vietnam.  Based upon the preponderance of evidence, the Board determined there was no error or injustice in this case.  

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION

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

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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 15-185, (Boards, Commissions, and Committees—Army Board for Correction of Military Records), provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Paragraph 2-9 states 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.

//NOTHING FOLOWS//

ABCMR Record of Proceedings (cont)	 AR20160018633


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