IN THE CASE OF:
BOARD DATE: 3 October 2008
DOCKET NUMBER: AR20080012768
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 reconsideration of the Board's denial of his request to upgrade his undesirable discharge.
2. The applicants sister writes a letter explaining how her brother, the applicant, became a recluse after he returned from Vietnam, and of the mental anguish she believes he has and is suffering from due to his experiences in Vietnam.
3. The applicant does not provide any additional documentation.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013418 on 5 February 2008.
2. In the Boards first review of the applicants request, the applicants contention that his discharge was the result of him suffering from Post-Traumatic Stress Disorder (PTSD) was considered. At that time the Board noted the applicant accepted nonjudicial punishment once, was convicted by two special courts-martial, and requested discharge in lieu of court-martial when he was charged with being absent without leave from 15 December 1969 to 15 June 1970.
3. The Board also noted the applicant requested discharge. He was not involuntarily discharged.
4. While the applicants medical records are not contained in the applicants military records, and are presumed to have been forwarded to the appropriate Department of Veterans Affairs Medical Center, in the battalion commanders recommendation to accept the applicants request for discharge, the battalion commander stated that the applicant has been medically examined and is qualified for separation.
5. The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.
6. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agencys examinations and findings.
DISCUSSION AND CONCLUSIONS:
1. The applicants sisters statement certainly supports the applicants contention that he suffers from PTSD.
2. However, there is no evidence or indication that the applicant suffered from PTSD when he went AWOL or requested discharge. To the contrary, he was given a medical examination and was determined to be medically qualified for separation.
3. Since there is no evidence that the applicant suffered from PTSD when he requested discharge, there is no basis for upgrading his discharge.
4. If the applicant started exhibiting symptoms of PTSD after his discharge, it is the responsibility of the VA to treat that condition, subject to the laws and regulations governing the VA.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070013418 dated 5 February 2008.
_______ _ 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) AR20080012768
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ABCMR Record of Proceedings (cont) AR20080012768
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