IN THE CASE OF:	  

		BOARD DATE:	  26 August 2008

		DOCKET NUMBER:  AR20080008558 


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 general discharge (GD), under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he suffered from schizophrenia while serving on active duty, and never received treatment for this condition.  He claims he repeatedly went on sick call to get help, but was only issued aspirin and sent back to duty.  He states that his illness led to his heavy drinking as a form of self medication, illogical thinking, and inappropriate behavior.  He states it is his belief that had he been properly treated for his condition, he would not have been discharged, and he asks that his discharge be upgraded from a GD to an HD.  

3.  The applicant provides the following documents in support of his application:  Statements in Support of Claim; Separation Document (DD Form 214); 
Page 1 Personnel Qualification Record (DA Form 2-1); Chronological Records of Medical Care (SFs 600); Consultation Sheet (SF 513); Emergency Care and Treatment Form (SF 558); and Department of Veterans Affairs (VA) Letter, dated 8 March 2005; 


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 initially enlisted in to the Regular Army (RA) and entered active duty on 12 June 1979.  It also shows he was trained in and awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator), and that the highest rank he attained while serving on active duty was sergeant (SGT).  

3.  The applicant's record shows that during his tenure on active duty he earned the following awards:  Army Achievement Medal; Army Good Conduct Medal (2nd Award); Army Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar.  

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  The record reveals a disciplinary history which includes his being formally counseled for a myriad of disciplinary infractions on several occasions between 1 November 1985 through 4 July 1986.

5.  The applicant’s Official Military Personnel File (OMPF) is void of any medical treatment records that show he was treated for or suffered from a disabling medical or mental condition while serving on active duty.  

6.  The applicant's OMPF contains a military police report (DA Form 3975), dated 4 July 1986, which shows the applicant was cited for the following offenses:  involvement in an automobile accident while drunk; wrongful possession of marijuana; fleeing the scene of a traffic accident; failure to obey a lawful order or regulation by operating a motor vehicle without a United States Army Europe (USAEUR) drivers license in his possession; using excessive speed; and failure to maintain speed.  

7.  On 12 August 1986, the applicant accepted non-judicial punishment (NJP) for operating a motor vehicle while drunk.  His punishment for this offense was a reduction to specialist E-4 (SPC), a forfeiture of $200.00 for 2 months, and 
30 days of restriction and extra duty. 

8.  On 20 August 1986, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of Paragraph 14-12, Army Regulation 635-200, by reason of misconduct – abuse of illegal drugs.  The unit commander cited the reasons for his proposed action was based on the following offenses:  drunken driving; wrongful possession of marijuana; use of marijuana; fleeing the scene of an traffic accident; failure to obey a lawful general order or regulation by operating a motor vehicle without a USAREUR drivers license in his possession; use of excessive speed; and failure to maintain control.  He also stated that the applicant had tested positive for THC (marijuana) on 4 July 1986.  

9.  On 14 August 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of those rights.  Subsequent to this counseling, the applicant completed his election of rights and requested consideration of his case by and personal appearance before an administrative separation board, consulting counsel, and representation by counsel at no expense.  He also elected to submit a statement in his own behalf.

10.  On 18 August 1986, after further consideration of alternate possibilities and ramifications through his own free will, the applicant elected to waive his rights to an administrative separation board contingent upon receiving a GD.  

11.  The separation authority approved the applicant’s separation and directed that he receive a GD.  On 15 September 1986, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued shows he was separated under the provisions of chapter 14-12c, Army Regulation 
635-200, by reason of misconduct-drug abuse.  It also shows that at the time, he had completed a total of 7 years, 3 months and 4 days of active military service, and that he held the rank of specialist (SPC). 

12.  The applicant provides SFs 600, dated in April 1981.  These documents show that the applicant experienced episodes of euphoria for unknown reasons, followed by depression, fears, jittering, paranoia, excess sleeping, pressure frontal headaches, and feelings that he was going crazy.  They further show the applicant admitted was experiencing depression, fatigue, weight loss prior to undergoing spinal tap. 

13.  The applicant also provides a letter from the VA, dated 8 March 2005, which shows he was granted a 100 percent (%) disability rating from the VA based on his service connection for schizophrenia, paranoid type based on service medical records from April 1986.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c (2) pertains specifically to a commission of a serious offense that is drug related. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general, under honorable conditions discharge (GD) or honorable discharge (HD) if such is merited by the Soldier’s overall record.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

17.  Chapter 4 of the disability regulation states that the Physical Evaluation Board (PEB) evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.


18.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD because he suffered from schizophrenia which led to his misconduct was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  There is no evidence of record or independent evidence provided by the applicant that shows he suffered from a mentally or physically disabling condition that rendered him unfit for further service at the time of his discharge.  

3.  The evidence of record also confirms that during a command directed urinalysis the applicant tested positive for marijuana.  The commission of this offense, along with his other acts of misconduct, clearly diminished the overall quality of the applicant's service below that meriting a fully honorable discharge.  

4.  The evidence of record further confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time, and that his discharge was accomplished in accordance with the terms of his own condition waiver.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  As a result, absent any evidence suggesting the applicant suffered from any medical condition at the time of his discharge, there is an insufficient evidentiary basis to support granting the requested relief.  

5.  The applicant is advised that a VA diagnosis or rating award does not establish entitlement to a medical discharge/retirement or an upgrade of discharge.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. In this case, it is assumed that the applicant is being properly evaluated and treated for his service connected medical conditions by the VA.  However, a VA diagnosis at this late date does not call into question the medical findings and determinations properly rendered by appropriate military medical officials at the time of his separation processing.  

6.  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)                                         AR20080008558



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ABCMR Record of Proceedings (cont)                                         AR20080008558



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