IN THE CASE OF:	  

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080013653 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states, in effect, that his discharge is unjust because following his service during Operation Desert Storm he was suffering from Post Traumatic Stress Disorder (PTSD) and it was not diagnosed while he was in the service.  He contends that he needs medical help and benefits.

3.  The applicant provides a letter, dated 20 May 2008, from the American Legion, Department of Indiana Service Department; a Department of Veterans Affairs (DVA) Rating Decision, dated 14 April 2008; three character reference letters; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).   

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, as counsel for the applicant, requests that the applicant be granted a complete and unconditional discharge.  Counsel requests that the date of his discharge be that of his last honorable discharge before he reenlisted for what turned out to be his final period of service which ended in a discharge under other than honorable conditions.

2.  Counsel states that the discharge is too harsh and that his post service conduct should be considered by the Board. 

3.  Counsel provides a statement, dated 16 October 2008.

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 enlisted in the Regular Army on 7 May 1987 for a period of 
3 years.  He successfully completed basic training and advanced individual training in military occupational specialty 31K (combat signaler).  On 1 November 1989, he was honorably discharged for immediate reenlistment.  He reenlisted on 2 November 1989 for a period of 3 years.  He served in Southwest Asia from 
20 August 1990 through 1 April 1991.  

3.  On 29 September 1991, a bar to reenlistment was imposed against the applicant. 

4.  The applicant provided a DVA Rating Decision, dated 14 April 2008, which states, in pertinent part, that he was seen for an adjustment disorder and brief psychotic reaction related to marital discord in October 1991 while in the service. 

5.  The applicant's service medical records are not available.     

6.  On 26 February 1992, charges were preferred against the applicant for two specifications of larceny; three specifications of being absent without leave (AWOL) from 4 October 1991 to 24 October 1991, 28 November 1991 to 
2 December 1991, and 3 January 1992 to 8 April 1992; and assault. 

7.  On 14 April 1992, the applicant signed a Medical Examination for Separation Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  Apparently, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.

8.  The applicant went AWOL on 6 May 1992 and was apprehended by civilian authorities and returned to military control on 30 April 1993.  

9.  On 13 May 1993, trial by special court-martial was recommended.  

10.  On 14 May 1993, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  The available records only contain the first page of his request for discharge.

11.  On 1 June 1993, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

12.  Accordingly, the applicant was discharged under other than honorable conditions on 1 July 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 4 years, 10 months, and 1 day of active service with 480 days of lost time due to AWOL.

13.  In support of his claim, the applicant provided three statements of support from family members.  They attest that when the applicant came back form Operation Desert Storm he was a changed man.  They state that the applicant has mood swings, that he has a bad attitude, and that he is depressed.  

14.  The applicant provided a DVA Rating Decision, dated 14 April 2008, which states, in pertinent part, “VA treatment records showed diagnoses of schizophrenia, psychotic disorder, alcohol and cocaine abuse and rule out posttraumatic stress disorder.  The VA Examination on October 30, 2007, showed diagnoses of psychotic disorder not otherwise specified, rule out schizophrenia, rule out substance induced psychotic disorder, cocaine abuse, alcohol abuse and posttraumatic stress disorder.”   

15.  The rating decision also states, “Service connection for posttraumatic stress disorder is denied.  The evidence showed that you received the Combat Infantrymans’ (sic) Badge, which is considered verification that an in-service stressor occurred.  The VA examination also showed a diagnosis of PTSD based on your combat stressors.  However, since your combat stressors occurred during a period of dishonorable service, compensation cannot be paid for posttraumatic stress disorder based on these stressors.”

16.  On 13 August 2001, the Army Discharge Review Board denied the applicant’s request for an honorable upgrade.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

18.  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.

19.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military ...service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment." 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant declined a separation medical examination on 14 April 1992 and it appears his medical records were reviewed by competent medical authorities and it was determined a medical examination for separation was not required.  His service medical records are not available and it cannot be determined what may have led to the October 1991 diagnosis of adjustment disorder and brief psychotic reaction.  

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  There is no evidence to show a mental condition caused him to not be able to understand what he was doing when he committed the larceny, AWOL, and assault.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  Good post service conduct alone is normally not a basis for upgrading a discharge.

5.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

6.  The applicant was honorably discharged on 1 November 1989 for the purpose of reenlistment.  It appears that the DVA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the DVA to inform them, if necessary, of the applicable statute and request further assistance.  It is acknowledged the DVA has denied him compensation for conditions incurred during his last enlistment.  

7.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.   There is no evidence to show he did not understand what he was signing.    

8.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

9.  The applicant’s record of service during his last enlistment included serious offenses which led to court-martial charges and 480 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.









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.




      ______XXX_ _   _______   ___
               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)                                         AR20080013653





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ABCMR Record of Proceedings (cont)                                         AR20080013653



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