IN THE CASE OF:	  

		BOARD DATE:	       23 APRIL 2009

		DOCKET NUMBER:  AR20090001592 


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 correction of his under other than honorable conditions discharge to a medical discharge.

2.  The applicant states that he suffers from Post Traumatic Stress Disorder (PTSD) and that he has all the symptoms of Agent Orange exposure.  He also states that when he returned from the Republic of Vietnam, his life was consumed with memories due to everything he went through.  He became an alcoholic and could not cope with the battles and/or the death of friends.  He further adds that he did not depart in an absent without leave (AWOL) status until he returned from Vietnam.  He has recently sobered up, but the memories of Vietnam are still alive in his mind.  He concludes that his discharge should be changed to a medical discharge based on the fact that he was an alcoholic with the attitude that he did not care to live or die and that nothing meant to him anymore.  He needs therapy and medical attention due to his diabetes.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 24 January 1972, in support of his request.

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 he was inducted into the Army of the United States on 22 January 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantry).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records also show he served in the Republic of Vietnam from on or about 28 July 1969 to on or about 27 July 1970.  His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, two Overseas Service Bars, the Combat Infantryman Badge, and the Army Commendation Medal.

4.  On 22 September 1969, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on or about 20 September 1969.  His punishment consisted of a forfeiture of $28.00 pay for one month (suspended for one month). 

5.  On 16 March 1971, the applicant pled guilty at a Summary Court-Martial to one specification of being AWOL during the period on or about 1 November 1970 through on or about 18 February 1971.  The Court sentenced him to confinement at hard labor for 30 days, a forfeiture of $50.00 pay for one month, and reduction to private (PV1)/E-1.  The sentence was adjudged on 16 March 1971.

6.  On 22 March 1971, the convening authority ordered the sentence approved; however, he suspended the portion of the sentence pertaining to confinement at hard labor for 30 days for 60 days.

7. On 27 March 1971, the applicant departed his unit in an AWOL status.  He returned to military control on 17 December 1971.

8.  On 21 December 1971, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 27 March 1971 through on or about 17 December 1971. 

9.  On 28 December 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

11.  On 23 December 1971, the applicant underwent a medical examination.  He indicated that there had been no change in his medical condition.  Furthermore, there is no indication in his medical records that he was diagnosed with battle fatigue/PTSD or that he was exposed to Agent Orange.

12.  On 19 January 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions character of service and be reduced the lowest enlisted grade.  Accordingly, the applicant was discharge don 24 January 1972.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year, 11 months, and 20 days of creditable active military service and had 373 days of lost time.

13.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 

14.  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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of Soldiers who may be unfit to their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement creates a presumption that the soldier is fit.

16.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The US Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts a MEB to determine whether the Soldier meets the medical retention standards of AR 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of Army Regulation 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the military treatment facility (MTF) for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of HQDA action.  The Commander, US Army Human Resources Command (USAHRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (3) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that his discharge should be changed to a medical discharge due to his PTSD, alcoholism, and/or exposure to Agent Orange was carefully considered; however, it was found without merit. 

2.  The applicant’s record shows 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 voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  With respect to medical disability, there is no evidence in the available records and the applicant failed to submit any evidence that shows he suffered from PTSD or any other medical condition during his military service.  Furthermore, there is no evidence in the applicant's records and the applicant did not submit any evidence that he had a medical condition which would have warranted his referral to the Physical Disability Evaluation System (PDES).  Therefore, he was not considered by a MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge.

4.  The applicant's need for medical assistance is noted.  However, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090001592



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ABCMR Record of Proceedings (cont)                                         AR20090001592



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