IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011642 


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 his previous request to upgrade the character of his 1973 discharge under other than honorable conditions to a general discharge.  He also now asks that consideration be given to granting him a medical discharge.

2.  The applicant makes no statement but defers to two statements submitted in support of his current request which both indicate the applicant was changed by his experience in Vietnam and as such, warrants consideration for either an upgrade of the character of his service or a medical discharge.

3.  The applicant provides a statement from a lifelong friend and a statement from his spouse.

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 AR20080019905, on 9 June 2009.

2.  The two statements supporting the applicant’s request are considered new evidence which warrant consideration by the Board.  The applicant’s request for a medical discharge is also considered a new argument warranting consideration.

3.  The applicant served in Vietnam between 26 September 1971 and 15 April 1972.  He was discharged under other than honorable conditions for unfitness after several incidents of misconduct, including possession of marijuana, absenting himself from or failing to go to his place of duty, and altering an identification card.  His first record of nonjudical punishment occurred while he was still in Vietnam.  The remaining records of nonjudicial punishment took place following his return to the United States.

4.  There were no service medical records available to the Board, or provided by the applicant.  However, a 10 April 1973 Mental Status Evaluation noted the applicant’s behavior was normal, that he was fully alert and oriented, that his mood was level, that his thinking process was clear, and his thought content normal.  The evaluating psychiatrist noted the applicant showed no psychiatric disorder and that he met the retention standards of Army Regulation 40-501.

5.  The statement submitted by the applicant from his spouse is dated 25 June 2009, but is unsigned.  In that statement the applicant’s spouse notes that over the year he has suffered from panic attacks, nightmares, and anxiety.  She states that in 1992 he was diagnosed with post traumatic stress disorder, panic attacks, and borderline obsessive compulsive disorders and was prescribed medication.  She states he has suffered every day of his life since his return from Vietnam.

6.  The statement submitted by the applicant from his lifelong friend is dated 
26 June 2009.  In that statement, the author notes the applicant was a normal boy growing up and that they used to be able to talk about anything.  However, since he returned from the war and to this day he has only said a few words about what he experienced over there.  He states the applicant has been taking medication which seems to help with his anxiety attacks and prays that the Board reconsider the applicant's discharge and upgrade the undesirable discharge to an honorable.  He states the applicant is an honorable man and believes he deserves reconsideration.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

8.  Army Regulation 635-40 also states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Additionally, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the commander exercising general court-martial jurisdiction over the Soldier determines the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s first record of nonjudicial punishment occurred prior to his departure from Vietnam.  There is no evidence, and the applicant has not provided any, which shows that his administrative separation was not warranted, was unfair, or unjust, or that there was any medical basis to excuse the behavior which resulted in his discharge.  His service was appropriately characterized as under other than honorable conditions and he has not made a compelling argue to upgrade the characterization of his service.

2.  While the applicant may have experienced problems in the years following his discharge from active duty, at the time of his discharge he was medically cleared for separation and as such there is no basis to correct his 1973 discharge to show he was medically discharged.

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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request

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 AR20080019905, dated 9 June 2009.



      _______ _  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)                                         AR20090011642





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ABCMR Record of Proceedings (cont)                                         AR20090011642



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