IN THE CASE OF:	  

		BOARD DATE:	       23 JUNE 2009

		DOCKET NUMBER:  AR20090002752 


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 discharge under other than honorable conditions be upgraded to an honorable discharge so that he may be able to obtain medical care.  

2.  The applicant states, in effect, he received an honorable discharge when he reenlisted in November of 1985.  He states he understands he is not eligible for services based on his latest discharge.  He states he witnessed his wife commit suicide in April 1986 and he went absent without leave (AWOL) 1 year later.  He was suffering from post-traumatic stress disorder (PTSD).  He also states he was diagnosed with Hodgkin's Lymphoma on 27 December 2007 (now in remission) and his thyroid was removed on 2 January 2009 due to cancer.  Then he was fired from his job because he could not perform the duties required because of his medical condition.  He has no medical insurance and he has an abundance of medical bills that he is unable to pay.

3.  The applicant provides, in support of his application, a copy of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 October 1987 and a letter from Dr. S__w, MD.

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 military personnel records and service medical records were not available for review.  Information concerning his military service was taken from his DD Form 214.

3.  The applicant enlisted in the Regular Army on 9 November 1982.  He was discharged on 12 September 1985 and immediately reenlisted on 13 September 1985.

4.  On 6 October 1987, the applicant was discharged under the provisions of 
Chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service with service characterized as under other than honorable conditions.  He had completed 4 years, 7 months, and 28 days of active military service and he had 90 days of lost time.  

5.  The applicant's DD Form 214, Item 11 (Primary Specialty Number, Title and Years and Months in Specialty) shows he served in military occupational specialty 55D (Explosive Ordnance Disposal (EOD) Specialist) for 4 years 
and 4 months.

6.  The applicant's separation processing package was not available for review.
The facts and circumstances pertaining to the applicant’s discharge are also not available.

7.  In a letter, dated 19 December 2008, Dr. S__w states the applicant was diagnosed with lymphoma stage III and he was treated with chemotherapy over the last year.  He states the applicant was also diagnosed with a follicular carcinoma of the left thyroid gland.  The doctor also stated that “it is unusual for a young person of the applicant's age to develop two carcinomas or cancers of this type in short order.”  He believes the applicant's case should be evaluated for any hazardous materials that he may have been exposed to such as radiation which would give him a higher likelihood of developing a cancer of the thyroid and also lymphoma.

8.  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.

9.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Paragraph 16-3, then in effect, states, in pertinent part, that when a Soldier is accepted for immediate reenlistment he will be discharged and reenlisted on the day following discharge.  The regulation further states that the service of a soldier discharged per paragraph 16-3 will be characterized as honorable unless entry-level separation is required.

10.  Army Regulation 635-200, Chapter 10, states in pertinent part that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

14.  Title 38, U. S. Code, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which was incurred in or aggravated by active 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.  

DISCUSSION AND CONCLUSIONS:

1.  As provided in Army Regulation 635-200, in effect at the time, concerning discharge and immediate reenlistment, the applicant's period of service from 
9 November 1982 to 12 September 1985 is characterized as honorable. 

2.  The applicant contends he was suffering from PTSD at the time he went AWOL.  However, his military personnel and service medical records are not available and he has not submitted any evidence to show he was diagnosed or was receiving treatment for PTSD at the time he went AWOL.  Therefore, his contention was not considered as a mitigating factor in this case.

3.  In order to be discharged under the provisions of Chapter 10 of Army Regulation 635-200, the applicant had to have voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.

4.  Although the applicant's separation packet was not available, it is presumed that the Army's administrative processing of the applicant for discharge was correct.  The applicant has the burden of proving an error or injustice occurred by a preponderance of the evidence.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the known facts of the case.

6.  The applicant has not provided sufficient evidence to support changing the character of his service to that of honorable or general under honorable conditions.

7.  The applicant's current medical condition was considered.  However, medical conditions which are diagnosed or progress after a Soldier is separated are treated by the VA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that Agency.  

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR.  As previously stated, questions regarding eligibility for service-connected disability should be addressed to the VA.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ________  DENY APPLICATION
X
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)                                         AR20090002752



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ABCMR Record of Proceedings (cont)                                         AR20090002752



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