IN THE CASE OF:	  

		BOARD DATE:	  	  

		DOCKET NUMBER:  AR20080006789


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 an upgrade of his discharge to general under honorable conditions.

2.  The applicant states that he was having mental health issues and had been subjected to numerous traumas during his period of service; that he has been diagnosed with post-traumatic stress disorder (PTSD) and other mental health problems, and that his impaired mental state was not given consideration at the time of his discharge.  He continues to state that his initial period of enlistment was honorable and that he planned to make the Army his career.  He concludes that he is unable to receive veterans’ benefits with his current discharge characterization.

3.  The applicant provides copies of two DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty), change of station orders, pages 1 and 3 of a Veterans Administration PTSD examination, Veterans Administration medical records for the periods 13 May 2005 and 22 December 2005, a Veterans Administration benefits determination letter, and a Veterans Affairs stressors documentation letter 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 military service records show that he enlisted in the Regular Army on 9 June 1977.  He completed basic training and advanced individual training and was awarded the military occupational specialty 11D (Personnel Carrier Driver).

3.  Headquarters, U.S. Army Armor Center and Fort Knox, Orders 166-197, dated 24 August 1977, show that the applicant was reassigned to Headquarters and Headquarters Troop, 11th Armored Cavalry Regiment, in Germany effective on or about 8 September 1977.

4.  The applicant's DD Form 214 for the period ending on 3 May 1979 shows that he was discharged from active duty under honorable conditions for the purpose of immediate reenlistment.  His DD Form 214 shows that he served a total of 1 year, 10 months, and 25 days of creditable active military service during this period.  The highest rank he achieved was private first class/pay grade E-3.

5.  On 15 December 1981, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed against the applicant for leaving his appointed place of duty without authority on or about 2 December 1981 in violation of Article 86.  The applicant received punishment in the form of forfeiture of $100.00 (suspended for 90 days).

6.  On 23 March 1982, nonjudicial punishment under Article 15 of the UCMJ was imposed against the applicant for two incidents of failing to report to his appointed place of duty at the time prescribed on or about 29 January 1982 and one incident of failing to report to his appointed place of duty at the time prescribed on or about 9 March 1982 in violation of Article 86.  The applicant received punishment in the form of forfeiture of $150.00, 14 days of restriction, and 14 days of extra duty.

7.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 21 April 1982, shows that the applicant received nonjudicial punishment for one incident of failure to report resulting in forfeiture of $150.00, 14 days of restriction, and 14 days of extra duty; one incident of failure to report resulting in forfeiture of $100.00 (suspended for 90 days); and one incident of non-payment of just debts. The DA Form 4126-R states that he presents nonconformity with acceptable Army standards, that he cannot be accounted for many times, that he continually leaves his appointed place of duty, and that he does not demonstrate the necessary leadership qualities the Army demands of a noncommissioned officer.

8.  On 3 August 1982, nonjudicial punishment under Article 15 of the UCMJ was imposed against the applicant for one incident of leaving his appointed place of duty without authority on or about 15 July 1982 and one incident of failing to report to his appointed place of duty at the time prescribed on or about 16 July 1982 in violation of Article 86.  The applicant received punishment in the form of forfeiture of $200.00 pay per month for 1 month (suspended), 14 days of extra duty, and 14 days of restriction to the limits of the troop areas.

9.  DA Form 4187 (Personnel Action), dated 22 October 1982, shows that the applicant’s duty status was changed from present for duty to absent without leave (AWOL) effective 22 October 1982.

10.  DA Form 4187, dated 25 October 1982, shows that the applicant’s duty status was changed from AWOL to present for duty effective 25 October 1982.

11.  On 28 October 1982, the existing bar to reenlistment was reviewed and continued based on the applicant’s poor performance to date and his present AWOL status.

12.  DA Form 4187, dated 11 November 1982, shows that the applicant’s duty status was changed from present for duty to AWOL effective 26 October 1982.

13.  DA Form 4187, dated 16 November 1982, shows that the applicant’s duty status was changed from AWOL to present for duty effective 15 November 1982.

14.  DA Form 4187, also dated 16 November 1982, shows that the applicant’s duty status was changed from present for duty to military confinement effective 16 November 1982.

15.  3d Battalion, 8th Cavalry Regiment memorandum addressed to the applicant indicates that he was reduced from the rank of sergeant/pay grade E-5 to the rank of private/pay grade E-1 effective 21 December 1982 and further indicates action to separate the applicant under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) and paragraph 8-11 of Army Regulation 600-200 (Enlisted Personnel Management System).

16.  Headquarters, U.S. Army Training Center and Fort Dix, Orders 010-316, dated 10 January 1983, show that the applicant was discharged effective 10 January 1983.

17.  Item 4 (Assignment Considerations) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows the entry “not recommended for further service.”

18.  The applicant's DD Form 214 for the period ending on 10 January 1983 shows that he was discharged from active duty under other than honorable conditions for the good of the service in lieu of court-martial under the provisions of Chapter 10 of Army Regulation 635-200.  His DD Form 214 shows that he served a total of 3 years, 7 months, and 15 days of creditable active military service during this period and had 23 days of lost time due to unauthorized AWOL during the periods 22 October 1982 to 24 October 1982 and 26 October 1982 to 14 November 1982.  The highest rank he achieved was sergeant/pay grade E-5. He was reduced to the rank of private/pay grade E-1 prior to his discharge.  The applicant authenticated this form by placing his signature in Item 21 (Signature of Member Being Separated).

19.  The applicant's records do not show any significant acts of valor during his military service.

20.  There is no evidence in the applicant’s military service records which indicates that the applicant experienced mental or emotional trauma or that he sought assistance through his chain of command or other military officials for treatment for mental or emotional stress.

21.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

22.  Veterans Administration benefits determination letter, dated 7 June 1988, shows that the applicant’s eligibility for Veterans Administration purposes was established on the basis of his initial period of obligated service for the period 10 June 1977 to 9 June 1980.

23.  Pages 1 and 3 of the applicant’s Lebanon Veterans Administration Medical Center PTSD examination show that the applicant was examined for PTSD on 1 August 1997.  The available subjective findings show that he appeared to be under “no apparent distress” with “no marked mood lability.”

24.  Veterans Administration medical records for the period 13 May 2005 show that the applicant was diagnosed with PTSD, alcohol dependence, and schizophrenia by history.  His treatment plan shows that he was advised to “stop drinking alcohol and to maintain his sobriety,” and to attend AA [Alcoholics Anonymous] meetings or reenter a SATU [Substance Abuse Treatment Unit] program.  The documentation also shows that applicant was “unwilling to do so at this present time.”

25.  Veterans Administration medical records for the period 22 December 2005 show that the applicant was diagnosed with PTSD, schizophrenia, and alcohol dependence.  His treatment plan shows that he was “unwilling to be on any psychiatric medications at this time” and that he was “encouraged to maintain his sobriety.”

26.  Lancaster Veterans Affairs Community Based Outpatient Clinic letter, dated 13 February 2006, states that the applicant was seen for an initial psychotherapy session on 13 February 2006 and would be scheduled bi-weekly to monthly for treatment of PTSD.

27.  Lancaster County Department of Veterans Affairs letter, dated 26 April 2006, states that the applicant has been diagnosed with PTSD by the Department of Veterans Affairs and is seeking documentation of his stressors.  This letter indicates, in effect, that he experienced three specific traumatic events involving the deaths of fellow Soldiers during his service with Troop I, 3d Squadron, 11th Armored Cavalry Regiment.  It also indicates that the applicant stated that his unit was occasionally under fire from the East German side of the border and that Soldiers were shot during his tour.

28.  U.S. Army and Joint Services Records Research Center letter, dated 11 April 2007, states that a U.S. Army Criminal Investigation Command Report of Investigation verified that a member of the applicant’s unit of assignment committed suicide on 8 August 1980.

29.  Lancaster County Department of Veterans Affairs letter, dated 12 March 2008, states that the applicant was diagnosed with PTSD, bi-polar disorder, and schizophrenia, and was adjudicated disabled by the Social Security Administration and is receiving disability benefits.  The Veterans Affairs Director requests consideration of “some legitimate mitigating circumstances which may have had an effect on the applicant’s mental state and his behavior.”

30.  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.

31.  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.

32.  Army Regulation 635-200, chapter 10, 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.  A request for discharge under the provisions of chapter 10 stipulates that the individual is aware that as a result of the issuance of a discharge under conditions other than honorable that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment; however, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge to general under honorable conditions was carefully considered and determined to be without merit.

2.  The applicant contends that he was having mental health issues and had been subjected to numerous traumas during his period of service, and that his impaired mental state was not given consideration at the time of his discharge.  However, there is no evidence, and the applicant has provided insufficient evidence, which shows he suffered from or received treatment for mental or emotional stress during his military service or that this condition was the cause of his indiscipline and subsequent separation.  Therefore, this contention is without merit.

3.  There is no evidence to indicate the onset of the applicant’s subsequent diagnoses of PTSD, schizophrenia, and alcohol dependence or whether these conditions contributed to his acts of indiscipline during the period of his military service.

4.  The applicant's military service records show that 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 trial by court-martial.  The applicant does not contest his record of indiscipline.  Although the applicant's separation processing paperwork is not available for review with this case, absent evidence to the contrary, it is reasonable to presume that the applicant voluntarily requested discharge from the U.S. Army in lieu of trial by court-martial, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.  Further, the discharge document was authenticated by the applicant.

5.  The applicant’s history of indiscipline involving multiple incidents of unauthorized AWOL clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge

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

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)                                         AR20080006789





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ABCMR Record of Proceedings (cont)                                         AR20080006789



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