APPLICANT REQUESTS:  That his undesirable discharge be upgraded to a general discharge or better.  In the alternative, he requests that he be given a complete and unconditional separation from the service when he reenlisted.

APPLICANT STATES:  Veterans Administration (VA) and Social Security Administration (SSA) have both diagnosed him as suffering from Post-traumatic Stress Disorder (PTSD) as a result of his service in Vietnam.  He claims that his PTSD caused him to have the problems which caused his undesirable discharge during his reenlistment.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army for 3 years on 11 October 1968, was awarded the military occupational specialty of track vehicle mechanic, and was promoted to pay grade E-4.  He served in both Korea and Vietnam.

On 29 July 1972 he reenlisted for 3 years for assignment to his current duty station.  He had served 2 years, 9 months and 18 days of his 3-year enlistment.

The applicant accepted nonjudicial punishment under Article 15, UCMJ, twice, once for sleeping on guard duty and once for being AWOL from 9 to 13 October 1971.

On 8 September 1972 charges were preferred against him for two specifications of AWOL, once from 7 to 27 March 1972 and once from 30 March to 8 September 1972.

The applicant then voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the undesirable discharge which he might receive.  He indicated he understood he could be denied some or all veterans benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

The applicant was given a separation physical examination on 11 September 1972, which included a mental status evaluation.  The only possible psychiatric entry was “Depression and nervousness - long time anxiety.”

His request for discharge was accepted and he was issued an Undesirable Discharge Certificate on 27 September 1972.  He had served 7 months and 21 days of his reenlistment and had a total of 188 days of lost time (AWOL).

Records received from the SSA indicates that the applicant met the medical requirements for disability benefits from that agency.  However, the SSA had not made a determination at that time as to whether he met the nonmedical requirements for SSA disability benefits.

Records received from the VA show that the applicant had fraudulently obtained educational benefits from that department by altering his DD Form 214 to show that he was honorably discharged and had served a total of 3 years, 9 months and 18 days of creditable service.  The applicant was also awarded a 10 percent (compensatable) disability rating from the VA for hearing loss.  When the VA discovered that the applicant had received an undesirable discharge, that he had fraudulently altered his DD Form 214, it severed service connection for his disability and stopped his educational benefits, retroactive to the dates both those benefits were granted.  

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.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) paragraph 4-3, provides that an enlisted soldier whom is the subject of elimination action that might result in a discharge under other than honorable conditions may not be processed for medical retirement or discharge.

The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.  Mental disease or defect does not otherwise constitute a defense.  The accused is presumed to have been mentally responsible at the time of the alleged offense.  This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

The VA, in determining qualifications for benefits administered by that agency generally holds that an individual who is discharged upon completion of his complete term of obligated service is eligible for benefits since that separation amounted to a complete and unconditional separation from the service.

On 21 January 1983 the Army Discharge Review Board denied a request from the applicant to upgrade his discharge.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Office of The Surgeon General (OTSG).  The OTSG recommends denial of the applicant’s request.

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

1.  The applicant has not submitted any argument or evidence which would justify upgrading his discharge.

2.  The applicant was given a separation physical examination which included a mental status evaluation and was determined to be medically qualified for separation.

3.  Whether or not the applicant suffered from PTSD, or any other medically disqualifying condition, at the time of his discharge has no bearing on his case.  He was precluded from being considered for medical retirement due to the fact that he was pending discharge under other than honorable conditions and there is no indication that he was not mentally competent when he departed AWOL.  

4.  Any rulings made by the VA or the SSA are immaterial in this case for the reasons noted above.  However, the Board notes that neither of these offices have awarded the applicant any compensation for PTSD.  To the contrary, the VA has severed all benefits given to the applicant due to his altering his separation document in order to fraudulently obtain benefits.

5.  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




						Karl F. Schneider
						Acting Director