IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080006183 


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 correction of his records to show the narrative reason for his discharge changed to medical discharge.

2.  The applicant states that his discharge was unjust because someone should have known his combat experience caused him nightmares and crawling in his sleep, which impaired his ability to function as a sergeant. 

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Psychological/Mental Evaluation Report, dated 23 July 2007, in support of his application.

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 records show that he enlisted in the Regular Army for a period of 3 years on 10 April 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank/grade the applicant attained during his military service was specialist five (SP5)/E-5.

3.  The applicant's records also show he served in the Republic of Vietnam as a bridge helper and dump truck driver from 11 January 1968 to 11 January 1969.

4.  The applicant's records show that he was awarded the National Defense Service Medal, the Vietnam Campaign Medal, the Vietnam Service Medal, two Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any significant acts of valor during his military service.

5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant DA Form 20 (Enlisted Qualification Record) shows the applicant was reported absent without leave (AWOL) during the period from 12 August 1967 to 20 August 1967; 2 June 1969 to 14 August 1969; 19 August 1969 to 28 September 1969; and from 15 October 1969 to 8 February 1970. 

6.  On 28 August 1967, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 12 August 1967 through on or about 21 August 1967.  His punishment consisted of forfeiture of $23.00 pay for one month, 14 days of restriction, and 14 days of extra duty.

7.  On 3 December 1969, court-martial charges were preferred against the applicant for three specifications of being AWOL during the periods from on or about 2 June 1969 through on or about 14 August 1969; from on or about 19 August 1969 through on or about 28 September 1969; and from on or about 15 October 1969 through on or about an unknown date.

8.  On 10 February 1970, the applicant was apprehended and returned to military control at Fort Lewis, Washington.  

9.  On 16 February 1970, court-martial charges were preferred against the applicant for three specifications of being AWOL during the periods from on or about 2 June 1969 through on or about 14 August 1969; from on or about 19 August 1969 through on or about 28 September 1969; and from on or about 15 October 1969 through on or about 9 February 1970.


10.  On 13 May 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

11.  In his request for discharge, the applicant indicated that he understood that if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

12.  On 13 May 1970, the applicant's immediate commander recommended approval of the applicant’s discharge.  The immediate commander remarked that the applicant’s behavior rendered him unsuitable for further military service and that it was believed the applicant was amenable to any form of punishment, retraining, or other forms of rehabilitation.

13.  On 19 May 1970, the applicant’s intermediate commander concurred with the immediate commander’s remarks and recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.   

14.  On 26 May 1970, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 3 June 1970, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows that he was discharged for the good of the service with a character of service of under conditions other than honorable.  This form further confirms the applicant had completed a total of 2 years, 6 months, and 23 days of creditable active military service and had 211 days of lost time due to AWOL.

15.  On 27 May 1983, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge. 

16.  The applicant submitted a copy of his VA psychological/mental evaluation report, dated 23 July 2007, that shows he experienced horrific combat in a myriad of ways on a daily basis, and continues to live in fear and dissociation, and experiences consistent with Post Traumatic Stress Disorder (PTSD).

17.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation, an undesirable discharge was normally considered appropriate.

18.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

20.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

21.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

22.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a specific or higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the narrative reason for his discharge should be changed to a medical discharge was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged. 

2.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he suffered from any medical condition, to include PTSD, during his military service.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before he/she can be medically discharged or retired. Furthermore, there is no evidence in the available records and the applicant did not provide any evidence that he was found physically unfit to reasonably perform his duties or that he was evaluated by an MEB and/or was referred to a PEB.

3.  There is no evidence in the available records and the applicant did not provide sufficient evidence showing that his act of indiscipline was the result of any medical condition.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant willingly, voluntarily, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								XXX
      _______________________
      	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.

ABCMR Record of Proceedings (cont)                                         AR20080006183



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ABCMR Record of Proceedings (cont)                                         AR20080006183



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