IN THE CASE OF:	   

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090012748 


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, correction of item 9c (authority and reason for discharge) of his 21 March 1978 DD Form 214 (Report of Separation from Active Duty) to show he suffered from a Post Traumatic Stress disorder (PTSD).

2.  The applicant states, in effect, he was not properly counseled and he did not receive a mental status evaluation in connection with his discharge processing.

3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision, dated 28 May 2009; and copies of his DD Forms 214 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 shows that after completing 17 years, 7 months, and 26 days of prior active duty service, he enlisted in the Regular Army (RA) and began his last continuous period of active duty service on 18 February 1975.

3.  The applicant's record shows that during his active duty tenure, he earned the National Defense Service Medal, Bronze Star Medal, Army Commendation Medal, Army Good Conduct Medal (4th Award), Vietnam Service Medal, Republic of Vietnam (RVN) Campaign Medal with Device (1960), RVN Gallantry Cross with Palm Unit Citation, Driver's Badge, and the Recruiter's Badge.  It also shows that he completed overseas tours in Korea and Okinawa and that he served in the RVN for a total of 18 months during separate periods in 1966 and between 1968 and 1969.

4.  On 31 December 1976, while serving in Germany, the applicant departed absent without leave (AWOL) from his organization.  He remained away for 
368 days until returning to military control on 2 January 1978, at Fort Knox, KY.

5.  On 9 January 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 31 December 1976 through on or about 3 January 1978.

6.  On 10 January 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge (UD) if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this counseling, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.

7.  In his discharge request, the applicant acknowledged that by submitting a discharge request, he was acknowledging that he was guilty of the charge against him or of a lesser included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  He further indicated he understood if his discharge request were accepted, he could receive an under other than honorable conditions (UOTHC) discharge and that he had been advised of the possible effects of this type of discharge.


8.  In his discharge request, the applicant also acknowledged that he understood he could be deprived of many or all Army benefits, that he could be ineligible for or deprived of 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.  He further indicated that he understood he could encounter substantial prejudice in civilian life because of an UOTHC discharge.

9.  On 13 February 1978, the separation authority approved the applicant's voluntary request for discharge and directed that he receive a general, under honorable conditions discharge (GD) instead of the UOTHC discharge usually issued based on the recommendations of the applicant's chain of command, who recommended a GD based on the applicant's overall record of service, which included his combat service in the RVN.  On 21 March 1978, the applicant was discharged accordingly.

10.  The applicant's Official Military Personnel File (OMPF) is void of any medical treatment records that indicate he was ever diagnosed with PTSD while serving on active duty or that show he suffered from any disabling mental or physical condition at the time of his discharge. 

11.  The DD Form 214 issued to the applicant on 21 March 1978 confirms he was discharged in the rank/grade of sergeant first class (SFC)/E-7 after completing a total of 17 years, 7 months, and 26 days of creditable active military service with 368 days of time lost due to AWOL.

12.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade or change of reason to his discharge within that board's 15 year statute of limitations.

13.  The applicant provides a VA rating decision, dated 28 May 2009, which indicates the VA increased the applicant's previous 10 disability rating to 100 percent, effective 19 April 2009.  This document indicates that while the applicant's VA record shows some sporadic PTSD treatment, the treatment records do not show findings that would support an increased rating from an earlier date.

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.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM).  The condition is described in the current DSM-IV, pages 424 through 429.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge.  The specific diagnostic label given to an individual’s condition a decade or more after his discharge from the service may change, but any change does not call into question the application of the then existing fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that item 9c of his DD Form 214 should be corrected to show he suffered from a PTSD was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, the applicant admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  His 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.  

3.  The applicant's record is void of any medical records or any other documents that indicate he suffered from a mental or physically disqualifying condition at the time of his discharge processing.  It further shows the separation authority directed he receive a GD rather than the normal UOTHC discharge based on his overall record of service, and combat service in the RVN.

4.  The fact the applicant has subsequently been diagnosed with a PTSD by the VA does not call into question the application of the existing fitness standards used by the Army at the time of the applicant's discharge.  Therefore, absent any evidence of record or independent evidence submitted by the applicant that 

shows he suffered from a disabling PTSD at the time of his discharge, there is an insufficient evidentiary basis to grant the requested relief.

5.  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)                                         AR20090012748



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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