IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080006719 


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, in effect, that his undesirable discharge (UD) be changed to a medical discharge.

2.  The applicant states, in effect, that he was twice assaulted by other Soldiers, which resulted in his sustaining a mental injury that caused him to be unfit for duty.  He provides a brief history of his military service, details surrounding the alleged assaults, and indicates his attackers were punished by court-martial.

3.  The applicant provides an Application for Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293), dated 22 March 2008; a self-authored statement, dated 20 December 2007; and a doctor’s statement, dated 22 March 2008, 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 record shows he enlisted in the Regular Army and entered active duty on 11 June 1975.  He completed basic combat and advanced individual training at Fort Polk, Louisiana.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments & Reductions), that he was advanced to the rank of private/E-2 (PV2) on11 October 1975, and that this was the highest rank he attained and held while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 (PV1) on 4 March 1976.

4.  The applicant's record is void of any medical treatment records, or other documents that indicate he was ever treated for a disabling medical or mental condition during his active duty tenure.

5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The record does contain a Bar to Reenlistment Certificate (DA Form 4126-R), dated 26 February 1976, which indicates he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for two separate incidents of his departing absent without leave (AWOL), first on 5 January 1976 and again on 5 February 1976.  The bar to reenlistment form also indicates the applicant, whenever he chose to, was uncooperative with his fellow Soldiers; consistently substandard in personal appearance and overall job performance; and that he could not adapt to the required self-discipline and self-control of military life.  

6.  On 7 July 1976, the unit commander informed the applicant that he was 
being considered for elimination from the service under the provisions of Paragraph 13-5a(1), Army Regulation 635-200, by reason of misconduct.  He cited the applicant’s frequent incidents of a discreditable nature with civil or military authorities as the basis for his action.  He also indicated that the applicant had been counseled for a myriad of disciplinary infractions at least twenty times during the period between 15 November 1975 and 8 April 1976.  His infractions included a lack of self-discipline and military bearing, improper wearing of the uniform, failure to repair, AWOL, failure to go through his chain of command for assistance, avoiding details by going on sick call, poor duty performance and attitude, malingering, and disobedience.


7.  On 7 July 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights.  Subsequent to this counseling, he elected to waive consideration of his case by and appearance before a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  On 14 July 1976, the separation authority approved the applicant’s separation under the provisions of Chapter 13, Army Regulation 635-200, for misconduct, and directed the applicant receive an UD.  On 2 August 1976, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant on the date of his separation shows he was discharged from the Army under the provisions of Paragraph 13-5a(1), Army Regulation 635-200.  It also shows that he completed a total of 11 months and 22 days of creditable active military service and that he accrued 60 days of time lost due to AWOL.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated). 

9.  There is no evidence of record to show the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  

10.  The applicant provides a prescription form under a doctor’s letterhead that indicates he has been under psychiatric care for his diagnosed conditions of major depression, post traumatic stress disorder (PTSD), and organic brain disorder since 20 June 2007.  The form also indicates the applicant’s disabilities are deemed the direct result of the physical and mental abuses and assaults he received while on active duty.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, personality disorder, apathy, or homosexual tendencies.  Members separated under these provisions normally received an UD.  However, the separation authority could issue a GD or HD if warranted by the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UD should be changed to a medical discharge because of the two assaults imposed upon him while on active duty resulting in the mental injury from which he still suffers was carefully considered. 
However, while his current condition is unfortunate, there is no evidence of record or independent evidence provided by the applicant that shows he suffered from a disabling physical or mental condition at the time of his discharge that would have supported his separation processing through medical channels, or that disqualified him from further service.  
 
2.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on two separate occasions and extensive formal counseling for a myriad of disciplinary infractions.  

3.  Further, the evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  As a result, there appears to be no error or injustice related to his discharge processing and his UD accurately reflects his overall record of undistinguished service.  Absent any evidence the applicant was actually suffering from a disqualifying physical or mental condition at the time of his discharge processing, there is an insufficient evidentiary basis to support granting the requested relief.  

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

___x____  ___x____  ___x____  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.



      ________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.

ABCMR Record of Proceedings (cont)                                         AR20080006719



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ABCMR Record of Proceedings (cont)                                         AR20080006719



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