RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2007
	DOCKET NUMBER:  AR20070010051 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Thomas A. Pagant

Chairperson

Mr. Eric N. Anderson

Member

Mr. Paul M. Smith

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded. 

2.  The applicant states, in effect, that he was unjustly given an undesirable discharge because no consideration was given concerning his untreated combat wounds, depression, anxiety or Post-Traumatic Stress Disorder (PTSD).  He states that he never received legal counseling or any other form of counseling prior to his discharge.  He states he should have received an honorable or a medical discharge.

3.  The applicant provides a copy of two chest x-rays and a Diagnostic Imaging Report from Sutter Roseville Medical Center, dated 16 June 2003.

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.  The applicant's military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he enlisted the Regular Army on 24 July 1950 for a period of 3 years.  He was released from active duty on 29 September 1953 with an undesirable discharge. 

4.  The applicant's reconstructed records do not contain the applicant's separation packet.  However, the DD Form 214 (Report of Separation from the Armed Forces of the United States) he was issued shows that he completed a total of 1 year, 5 months, and 25 days of active service during that enlistment.  According to his DD Form 214, he had 629 days of time lost.
5.  The Diagnostic Imaging Report from Sutter Roseville Medical Center, dated  
16 June 2003, that the applicant submitted shows two views of his chest x-rays, and there appears to be metallic fragments in the right chest wall.

6.  The applicant's reconstructed records do not have any evidence of medical documents to substantiate that he suffered from combat wounds, depression, anxiety or PTSD.

7. Army Regulation 615-368 (Enlisted Personnel-Discharge Unfitness), then in effect, set forth the policy for administrative separation for unfitness (misconduct). This regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, unclean habits, including repeated venereal infections or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued. 

8.  Army Regulation 635-200, paragraph 3-7a, provides that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  Army Regulation 635-200, paragraph 3-7b, provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded because no consideration was given to his untreated combat wounds, depression, anxiety or PTSD.

2.  The applicant's reconstructed records do not provide any evidence to show he had combat wounds, depression, anxiety or PTSD.  The two views of his chest  
x-rays are dated in 2003.  There is no evidence or indication that the metallic fragments are from 30 year old shrapnel wounds.

3.  Also, his DD Form 214 shows that he had 629 days time lost. Therefore, the applicant is not entitled to correction of his records to upgrade his undesirable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____tap__  ___ena__  ___pms__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




_________Thomas A. Pagant_______
          CHAIRPERSON




INDEX

CASE ID
AR20070010051
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070913
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.