IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016375 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to read honorable discharge under medical conditions instead of an undesirable discharge.

2.  The applicant states he suffered from post-traumatic stress disorder (PTSD).  First, he was an eyewitness when his best friend was killed in a helicopter crash at Fort Rucker, AL, in 1963.  Shortly after this incident, he was diagnosed with PTSD.  He should have been discharged for medical reasons.  Instead, the Army allowed him to take a discharge and then reenlisted him for 6 years.  He was subsequently sent to Korea where he witnessed the death of a Soldier being burned to death after a car wreck.  His PTSD became worse as he started having blackouts.  He would just walk off aimlessly and he could not explain where he was or what he did.  He was seen by a military doctor and he was ultimately sent back to California for a medical discharge.  He was again diagnosed with PTSD in 2009.  He wants this Board to examine these facts and reconsider his discharge.

3.  The applicant provides his DD Form 214 for the period ending 25 October 1964 and a letter from the Department of Veterans Affairs (VA) Regional Office, Jackson, MS, dated 29 January 2010.

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 he enlisted in the Regular Army (RA) for a period of 3 years on 22 October 1963 and held military occupational specialty 911.10 (Medical Specialist).  

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 January 1964, while in advanced individual training, for being absent without leave (AWOL) from 23 to 24 January 1964.

4.  On 28 April 1964, he was assigned to Headquarters Company, U.S. Army Hospital, Fort Rucker, AL

5.  He was honorably discharged on 25 October 1964 for the purpose of immediate reenlistment and he executed a 6-year reenlistment on 26 October 1964.  He subsequently served in Korea from on or about 17 December 1964 to on or about 2 November 1965. 

6.  His records show, while in Korea, he accepted NJP under the provisions of Article 15 of the UCMJ as follows:

* On 17 February 1965, for failing to perform maintenance on his assigned vehicle
* On 6 July 1965, for violating curfew

7.  On 20 August 1965, he was convicted by a special court-martial of one specification of absenting himself from his appointed place of duty and for willfully disobeying a lawful order from a superior officer.  The court sentenced him to reduction to private (PV1)/E-1, confinement at hard labor for 1 month (suspended), and a forfeiture of $55.00 pay for per month for 1 month.  The convening authority approved his sentence on 1 September 1965.

8.  On 1 September 1965, he was convicted by a summary court-martial of one specification of leaving his post as a sentinel without being properly relieved.  The court sentenced him to a forfeiture of $60.00 pay and 45 days of hard labor without confinement.  The convening authority approved his sentence on
8 September 1965. 

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain the following official documents:

	a.  Special Orders Number 306, issued by Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 2 November 1965, ordering him to be discharged effective 2 November 1965 for unfitness with the issuance of DD Form 256A (Undesirable Discharge Certificate).

	b.  A letter from an assistant adjutant, Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 2 November 1965, informing him that he was issued an undesirable discharge from the Army and that he had the option of petitioning the Army Discharge Review Board (ADRB).  The applicant acknowledged receipt of this memorandum indicating he read the letter and fully understood that he could apply to the ADRB for a review of his discharge within 15 years after the effective date of his discharge.

	c.  A properly-constituted DD Form 214 that shows he was discharged from the Army on 2 November 1965 in the rank/grade of PV1/E-1, with a date of rank of 1 September 1965, under the provisions of Regulation 635-208 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  He completed 2 years and 10 days of total active service.

10.  There is no indication in his available medical records that show he suffered from PTSD or an illness/injury or any other medical condition.  There is also no evidence he was issued a physical profile that rendered him unable to perform his duties or warranted consideration by the Physical Disability Evaluation System (PDES).

11.  There is no indication that he petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. 

12.  He provided a letter from the VA wherein a case manger denied his claim for service-connected disability compensation.

13.  Army Regulation 635-208, in effect at the time, set forth the policy for the administrative separation of enlisted personnel for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200 (Personnel Separations), 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

15.  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.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is 
made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Army Regulation 635-40, appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 2 November 1965 under the provisions of Army Regulation 635-208 by reason of unfitness with an undesirable discharge.

2.  Absent evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were presumably fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His records reveal a disciplinary history throughout his entire military service which includes three instances of NJP (one of which was received while he was in advanced individual training, before he ever arrived at Fort Rucker) and two instances of courts-martial.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge. 

4.  With respect to the medical discharge, there is no evidence in his records and he did not provide any substantiating evidence that shows he suffered from PTSD or any illness, injury, or a medical condition that warranted consideration by the PDES.   Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been medically discharged or separated for physical disability.

5.  Even if he suffered any medical condition, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

6.  In view of the foregoing evidence, he is not entitled to 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 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)                                         AR20100016375



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ABCMR Record of Proceedings (cont)                                         AR20100016375



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