IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012981 


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, under honorable conditions discharge (GD) be changed to a medical discharge.

2.  The applicant states, in effect, that he began having problems with a Post Traumatic Stress Disorder (PSTD) after his discharge from the Army.

3.  The applicant provides a Department of Veteran Affairs (VA) Letter, dated 15 July 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 confirms he enlisted in the Regular Army and entered active duty on 28 February 1980, and was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he was advanced to the rank of private first class (PFC) on 1 January 1981, and that this was highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of that private/E-1 (PV1) on 9 April 1981.

4.  The applicant’s record documents no acts of valor, significant achievement or service warranting special recognition.  The record does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four dates for the offenses indicated:  27 October 1980, for disobeying a lawful order; 29 October 1980, for being drunk on duty and for failing to go at the time prescribed to his appointed place of duty; 12 May 1981, for assault; and 
17 June 1981, for failing to go at the time prescribed to his appointed place of duty.  

5.  The applicant's record contains six counseling records (AE Form 113-4),  dated between 7 July and 26 September 1980.  These records show the applicant was counseled by members of his chain of command for a myriad of disciplinary infractions that included malingering, indebtedness, disrespect, unsatisfactory performance, being drunk on duty, not reporting to work on time, and disobeying lawful orders.

6.  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, and there was no record of treatment for PTSD-related symptoms.  

7.  On 4 June 1981, the applicant was notified by his unit commander that action was being taken to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.  He cited the applicant’s apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively as the basis for his action.

8.  On 5 June 1981, 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 not to submit a statement in his own behalf.  

9.  On 24 June 1981, the separation authority approved the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200, and directed the applicant receive a GD.  On 13 July 1981, the applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant on the date of his separation shows he was separated under the provisions of paragraph 13-4c(2), Army Regulation 635-200, by reason of unsuitability (apathy, defective attitudes, and inability to expand effort constructively).  It also shows that at the time, he had completed a total of 1 year, 4 months, and 16 days of creditable active military service.

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

12.  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 could receive either a GD or honorable discharge (HD).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his GD should be changed to a medical discharge because he now suffers from a PTSD was carefully considered.  However, the evidence of record provides no indication the applicant was ever treated for PTSD symptoms during his active duty tenure.  Further, there is no evidence suggesting the applicant was suffering from a disabling mental or medical condition at the time of discharge that would have supported his separation processing through medical channels.  

2.  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.  Further, his discharge accurately reflects his overall record of undistinguished service. 

3.  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)                                         AR20080012981



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ABCMR Record of Proceedings (cont)                                         AR20080012981



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