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ARMY | BCMR | CY1980-1989 | 8906279
Original file (8906279.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Reconsideration of his previous request to correct his records by upgrading his general discharge to honorable.
APPLICANT STATES : In effect that there were mental (post traumatic stress disorder) and physical conditions at the time of discharge that should have been considered. That his service in Vietnam and his post-service conduct warrant an upgrade of his discharge and needs medical care and benefits from the VA.

COUNSEL CONTENDS: Counsel concurs in the applicant’s presentation and requests that consideration be given to the applicant’s physical, mental, and emotional distress caused by combat incidents in Vietnam where he served honorably for 12 months.

 NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 7 March 1990 (COPY ATTACHED).

The applicant’s contention’s that the upgrade of his discharge is warranted because he was suffering from PTSD and physical problems at the time of discharge and that his post service and service in Vietnam should be a factor in granting relief constitutes new argument.

In support of a post-service adjustment argument he asks the Board to review, a letter signed by several people assumed to be members of the Combat Veterans Trauma Support Group, dated 2 December 1997 which states he is always ready to come to the aid of his fellow veterans despite his own needs; a letter of character reference from a friend of 8 years who cannot understand how the Government can grant amnesty to draft dodgers, yet not extend a hand to a man who did his duty for his country.

He submits as medical evidence a letter dated 21 January 1998 from the VA certifying that he has a combined service connected disability rating of 00 percent for conditions that are service connected for entitlement to medical care eligibility only.

Also included in his submissions are two letters from the Disabled American Veterans claiming that the applicant is a loving and faithful husband and father and that he has been granted service connected disability for PTSD for medical treatment purposes only.

His 19 January 1966 report of medical examination for his second enlistment separation shows that he was found qualified for separation (and therefore for retention). In the medical history he provided for that examination he reported “fair health.”

Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, which include PTSD, and provides that such disorders are unfitting only if persistence or recurrence of symptoms is sufficient to require extended or recurrent hospitalization, creates a necessity for limitations of duty or duty in a protected environment or resulting in interference with effective performance of military duty.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In the absence of evidence that, at the time of the discharge and the offenses that led to the discharge, the applicant was so impaired by mental or emotional problems that he could not both tell right from wrong and adhere to the right, the impairment issue does nothing to demonstrate an injustice in the discharge.

2. The applicant was being processed for separation under conditions that could have led to discharge under other than honorable conditions and was not eligible for physical disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.

3. The Board acknowledges the applicant’s loyal participation with the Combat Veteran’s Trauma Support Group and of his devotion to his family as evidence of appropriate post service behavior however, these factors are not so exceptionally meritorious as to warrant an upgrade of the discharge.

4. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6. In view of the foregoing, there is no basis for granting the applicant's request.

 DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


 BOARD VOTE :
________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

 ________ ________ ________ DENY APPLICATION



                                                      Loren G. Harrell
                                                       Director

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