IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100010033 


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 correct his records to show he was separated under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 12, retirement for length of service.

2.  The applicant states, in effect, that his service connected condition of post traumatic stress disorder (PTSD) should be taken into consideration when revisiting his request for military retirement.  He has been treated by the St. Cloud, MN, Department of Veterans Affairs (VA) Medical Center over the past several years for this condition.  The VA has currently rated him 100 percent disabled due to service connected conditions which include PTSD. 

3.  The applicant provides a copy of the VA Rating Decision, dated 6 November 2009.

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 AR20080005188, on 3 June 2008.



2.  On 31 July 1963, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He served through a series of reenlistments and a variety of assignments both in the United States and overseas.

3.  The applicant served a 12 month tour of duty in the Republic of Vietnam, a
24 month tour of duty in Hawaii, and a 68 month tour in the Federal Republic of Germany.

4.  On 11 July 1975, the applicant was promoted to sergeant first class.

5.  Item 4 (Assignment Considerations) of his DA Form 2-1 (Personnel Qualification Record Part II) shows that on 15 February 1984, the applicant applied and was approved for retirement. 

6.  Copies of Orders 46-8, United States Army Training Center Engineer and Fort Leonard Wood, Missouri, dated 15 February 1984, directed the applicant’s release from active duty effective 31 March 1984 and placement on the Retired List effective 1 April 1984.

7.  On 12 March 1984, the applicant went into an absent without leave (AWOL) status and on 16 March 1984, he returned to military control for a couple of hours and then went AWOL again, just 15 days before his date of retirement.  He remained in a desertion status until 19 August 1994, at which time he surrendered to military authorities at Fort Jackson, SC.  

8.  The applicant signed a Memorandum for the Commander, Personnel Control Facility, acknowledging that he had been AWOL from 16 March to 19 August 1994.  He made this admission for the purpose of receiving a discharge under other than honorable conditions.

9.  On 24 August 1994, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, being AWOL, during the period 16 March to 19 August 1994.  

10.  As a result, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.
11.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He elected not to make any statements in support of his discharge.  He also elected not to undergo a separation medical examination. 

12.  On 30 September 1994, the separation authority approved the applicant’s request for discharge and directed that he be issued a General Discharge under honorable conditions.  On 25 October 1994, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 (in lieu of trial by court-martial).  He had completed a total of 20 years, 9 months, and 18 days of creditable active military service and he had accrued 10 years, 5 months, and 
2 days of time lost due to being AWOL.

13.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Army Commendation Medal, Army Good Conduct Medal (6th Award), National Defense Service Medal, Vietnam Service Medal, Army Reserve Components Achievement Medal (2nd Oak Leaf Cluster), Meritorious Unit Commendation, Army Service Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal Unit Citation, Republic of Vietnam Campaign Medal with Device (1960), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

14.  On 15 February 2008, the applicant appealed to the ABCMR.  On 3 June 2008, his request was denied on the basis of his 10 year period of AWOL and his subsequent request for chapter 10.  Further review of the available records fails to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  The applicant's medical records are not available for review and the applicant has not submitted any evidence to show he suffered from or was diagnosed with PTSD or any variation of a mental disorder prior to his separation.  VA documents submitted by the applicant show that the he sought help from the VA Medical Center in St. Cloud, MN on 20 March 2009 and on 
14 April 2009.  


16.  On 13 May 2009, as a result of his diagnosis from the VA medical center, he submitted a VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)).  On 6 November 2009, the VA granted the following service connected compensation ratings: 

* 100 percent – Asthma effective 28 February 2007
* 50 percent – PTSD, Chronic, Alcohol Dependence in full sustained remission with cognitive disorder effective 31 March 2009
* 10 percent – Tinnitus effective 28 February 2007

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.  Title 10 of the U.S. Code provides the legal authority for the retirement of enlisted members who have at least 20, but less than 30 years of active military service.  It states, in pertinent part, that under regulations prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service may, upon his/her request, be retired. 

19.  Army Regulation 635-200, chapter 12 contains the policies on retirement.  Paragraph 12-4 contains guidance on the twenty-year retirement law.  It states, in pertinent part, that a Soldier who has completed 20, but less than 30 years of Active Federal Service (AFS) in the United States Armed Forces may be retired at his or her request.  

20.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  The VA, however, is not required by law to determine medical unfitness for further 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.  

21.  PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  The condition is described in the current DSM-III-R, pages 247 through 251.  While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier's heart, effect syndrome, combat fatigue, and traumatic neurosis.  Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he retired for length of service was carefully considered; however, it is not supported by the available evidence. 

2.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  At the time of his request, he elected not to undergo a separation medical examination.  

3.  The applicant's records contain a properly-constituted DD Form 214 that confirms the applicant was discharged under honorable conditions.  It further shows that at the time, he had completed a total of 20 years, 9 months, and 18 days of creditable active military service and he had accrued 10 years, 5 months, and 2 days of time lost due to being AWOL.  The applicant has not provided any statement or reason why he chose to go AWOL only 15 days prior to his retirement date.  

4.  The applicant's VA Rating Decision regarding his medical condition has been noted.  However, there is no evidence in the available records, neither has he submitted sufficient evidence that supports his contentions that he suffered from PTSD while he was in the Army or that his AWOL was result of PTSD.  

5.  Consideration has also been given to the fact that he is now receiving VA disability compensation for service connected conditions including PTSD that are rated 100 percent disabling.  However, it is not sufficient proof that he was suffering from PTSD while he was in the Army.  According to the VA rating decision he did not seek treatment from the VA for PTSD until 2007, almost 
23 years after he went AWOL and nearly 13 years after he was discharged from the Army.  The specific diagnostic label given to an individual's condition a decade or more after his discharge from the service may changed, but any changed does not call in to question the application of a then-existing fitness standard.

6.  In view of the foregoing, there is no basis to grant the requested 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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20080005188, dated 3 June 2008.


      ___________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)                                         AR20100010033



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ABCMR Record of Proceedings (cont)                                         AR20100010033



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