AR20150009404

IN THE CASE OF:

BOARD DATE: 3 May 2016

DOCKET NUMBER: AR20150009404

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X____ ____X__ ____X___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 3 May 2016

DOCKET NUMBER: AR20150009404

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: 3 May 2016

DOCKET NUMBER: AR20150009404

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 (UOTHC) discharge
* a personal appearance before the Board

2. The applicant states:

a. His discharge should be upgraded based on his service in Vietnam of 11months and 18days and award of the Bronze Star Medal and other merit awards for his service. He was dealing with post-traumatic stress disorder (PTSD). At the time service members weren’t aware of PTSD upon their return from war. He doesn’t feel his UOTHC discharge is deserved after what they all experienced in Vietnam. He deals with PTSD, Agent Orange, etc., every day. He dealt with the depression, as many veterans did, by drinking to numb the pain from what they witnessed and experienced in Vietnam. He wasn’t even discharged until 2years after his expiration of term of service.

b. He was told that after 6months his discharge would be upgraded to an honorable discharge as long as he stayed out of trouble. He stayed out of trouble and his discharge was never upgraded. He was told by the Department of Veterans Affairs (VA) that all of his records burned in the fire in the 1970’s; therefore, he has no way of proving this. He feels he deserves an honorable discharge just as he deserved the Bronze Star Medal that he holds in his possession with high regard.

3. The applicant provides copies of:

* VA Form 21-4138 (Statement in Support of Claim)
* two Certificates of Appreciation
* DDForm214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 27October 1970
* Honorable Discharge Certificate
* Vietnam Combat Certificate
* DD Form 214 for the period ending on 14March 1973

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 applicant’s complete military records are not available to the Board for review. A fire destroyed approximately 16 million service members records at the National Personnel Records Center in 1973. It is believed his records were destroyed in that fire. However, there was sufficient documentation provided by the applicant for the Board to conduct a fair and impartial review of this case.

3. The applicant’s available military records show:

a. He enlisted in the Regular Army (RA) on 27 February 1970, for 3years, and he held military occupational specialty (MOS) 94B (Cook). He was promoted to pay grade E-3 on 25June 1970. He received two Certificates of Appreciation in recognition of his honorable service. On 27 October 1970, he was honorably discharged for the purpose of immediate reenlistment. He completed 8months of net active service this period.

b. He reenlisted in the RA on 28October 1970 and continued to hold MOS94B.

c. He was issued a Vietnam Combat Certificate for faithful service in Vietnam for the period from 29December 1970 through 3March 1971.

d. He was reduced to pay grade E-1 on 12October 1972 (reason unknown).

e. He was discharged on 14March 1973, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter13. He completed 1year, 8months, and 26days of net active service this period with 235days of time lost. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. His DDForm214 lists in:

* Item 11c (Reason and Authority) Separation Program Number (SPN)386 (Unfitness, established pattern of shirking)
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized)

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Bronze Star Medal

* Item 30 (Remarks) Vietnam Service: 18December 1970 through 5December 1971

4. On 15June 2015, the Army Review Boards Agency requested the applicant provide any medical documents that supported his issue of PTSD. In his undated response, the applicant stated that he received an honorable discharge for his first enlistment. During his second enlistment, the Army sent him to Vietnam and awarded him the Bronze Star Medal during this tour. He did not realize his problems related to his service in that crazy Asian war. When he returned from Vietnam, he dealt with not wanting to be around crowds by using alcohol. He could not deal with being on the military base and the pain he was experiencing. Now 42years later, he cannot do this anymore without help from the VA. He honorably served his country, but he returned home with a lot of bad memories and pain. He wants to right a wrong and live as peacefully as he can. With whatever time he has left in this world, he would like to experience some peace for himself and his family.

5. There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations .

REFERENCES:

1. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in:

a. Chapter13 Individuals would be discharged by reason of unfitness when their records were characterized by one or more of reasons to include an established pattern of shirking. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

b. Paragraph 3-7a an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the members 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.

2. Army Regulation 635-5-1 (Separation Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DDForm214. The regulation stated the SPN386 was the appropriate code to assign Soldiers separated because of unfitness (established pattern of shirking).

3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards 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 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 conditions characterization of service.

4. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION:

1. With respect to an upgrade of the applicant’s undesirable discharge:

a. All the specific facts and circumstances pertaining to his undesirable discharge are unavailable for review. The available DDForm214 shows he separated under the provisions of Army Regulation 635-200 and assigned an SPN of 386. It appears this discharge was based on his established pattern of shirking.

b. The new policy specified the submission of a military or a civilian provider diagnosis of PTSD or PTSD-related conditions which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. There is no evidence of record and he provided none to show PTSD or a PTSD-related disorder prevented his satisfactory completion of his second term of enlistment.

c. He also provided no evidence or a convincing argument to show his undesirable discharge should be upgraded and his available military records contain no evidence which would support an upgrade of this discharge.

d. His 1973 DDForm214 carries with it a presumption of government regularity in the discharge process. Without evidence to the contrary, it appears his administrative separation complied with applicable regulations with no procedural errors that would tend to jeopardize his rights.

e. The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing entitlement to any benefits administered by the VA.

2. With respect to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings
may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009404

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009404

3

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2