IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100017678 


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 his 2 June 1980 Under Other Than Honorable Conditions Discharge be upgraded to a General Discharge Under Honorable Conditions.

2.  He states during the period he was discharged, the Army did not recognize Post Traumatic Stress Disorder (PTSD) but used medical diagnosis of Adjustment Reaction Disorder instead. 

3.  He provides copies of the following documents in support of his request:

* A DA Form 3647 (Clinical Record Cover Sheet)
* A Standard Form (SF) 502 (Clinical Record – Narrative Summary)
* A DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A letter from the National Personnel Records Center (NPRC)
* A coversheet from the Florida VA
* A letter from the Central Texas Veterans Health Care System (HCS)
* Progress Notes from Central Texas Veterans HCS

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.  His records show after having prior enlisted service in the United States Marine Corps, he enlisted in the Regular Army on 3 August 1976 for a period of 
4 years.  After the completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 16D (Hawk Missile Crewman.

3.  His record contains a copy of memorandum, dated 29 May 1979, from the Commander, 501st U.S. Army Artillery Detachment, requesting vacation of a suspended nonjudicial punishment (NJP) under Article 15, of the Uniformed Code of Military Justice (UCMJ).  The memorandum stated, at approximately 1500 hours on 11 April 1979, he sold three bottles of whiskey to German soldiers in a secure area of a nuclear capable unit.  The commander requested to vacate the portion of the applicant’s punishment which pertained to a reduction in rank and pay grade. 

4.  On 1 June 1979, the Group Commander approved the request and reduced him to the rank and pay grade of specialist/E-4.

5.  His record is void of a DD Form 458 (Charge Sheet) which would serve to show the specific charge(s) imposed against him.  

6.  After consulting with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement on his own behalf; however, he did request a medical examination prior to his separation. 

7.  He provided a copy of a DA Form 3647 and of an SF 502.  These forms show he was admitted to Frankfurt Army Medical Center in Germany on 8 November 1979, following a drug overdose for extreme depression and agitation.  He told the psychiatrist the catalyst for this action was due to his family residing 100 kilometers away, and only having the weekends to visit them.  His commander had threatened to send his family back to the U.S. if it continued to affect his duty performance.  He was diagnosed with an adjustment reaction of adult life disorder, manifested by a suicidal gesture.  He was discharged from the hospital on 19 November 1979, and returned to duty.  He was directed to follow up his treatment at the local mental hygiene clinic.  His military medical records are not available for review by the Board.  It is believed his military medical records are on permanent loan to the VA.   

8.  On 5 February 1980, his immediate commander recommended he not be discharged under the provisions of chapter 10, Army Regulation 635-200 due to the seriousness of his alleged offenses; his consistent recalcitrance in numerous minor offenses; an incomplete psychiatric evaluation; and additional pending General Court-Martial (GCM) charges.  The battalion commander concurred with the recommendation.

9.  Notwithstanding the recommendations of the company and battalion commanders; the brigade commander recommended he be discharged under the provisions of chapter 10, Army Regulation 635-200 and be issued an Under Other Than Honorable Conditions Discharge Certificate.  

10.  On 9 May 1980, the Judge Advocate General (JAG) office, 3rd Armored Division, forwarded the separation packet to the GCM Convening Authority for final disposition.  The JAG attorney noted that he received NJP for assault and dereliction of duty; and was pending the following charges:

* Possession, sale and transfer of heroin – 24 August 1979
* Conspiracy to robbery – 24 October 1979
* Robbery – 24 October 1979
* Fleeing the scene – 24 October 1979
* Possession of a firearm and a hand weapon – 24 October 1979
* Accessory to the fact – 24 October 1979

11.  As a result, the GCM Convening Authority approved his request for discharge in lieu of trial by court martial.  He directed the applicant be issued an Under Other Than Honorable Conditions, Discharge Certificate, dismissal of all charges upon discharge, and reduction to the rank and pay grade of private/E-1. 

12.  On 2 June 1980, he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with an "Under Other than Honorable Conditions Discharge," in the rank and pay grade of private/E-1.  He had completed a total of 3 years and 10 months of active service; 2 years, 11 months, and 21 days of prior active service; and 1 year, 
3 months, and 28 days of prior inactive service.  

13.  His record contains several National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service).  These forms show he enlisted in the New Jersey (NJ) Army National Guard (ARNG) (NJARNG) on 27 September 1980, and continued to serve through a series of reenlistments.  

14.  His records further show he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 18 April 1982, the ADRB denied his request and referred him to the ABCMR for any further requests for upgrade.  

15.  On 19 April 1996, a Medical Duty Review Board (MDRB) found him unfit for retention due to PTSD.  Accordingly, he was honorably discharged on 1 August 1996 under the provisions of paragraph 8-26, National Guard Regulation (NGR) 600-200, medically unfit for retention.   

16.  He provided a copy of his progress notes from the Central Texas HCS.  This report refers to his hospitalization on 8 November 1979 in Frankfurt, Germany.

17.  A review of the Army Review Boards Agency (ARBA) Case Tracking System (ACTS) shows he applied to the ABCMR on 8 June 2009, under ABCMR Docket Number AR20090010823 and on 9 October 2009, his application was returned without action due to insufficient essential documentation. 

18.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

19.  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.



20.  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 25l.  While PTSD was not recognized as a specific illness at the time of his separation from the service, the fact that an individual might not be fit for further military service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 (Standard of Medical Fitness), which was in effect at the time of his separation.  The Army here established standards and procedures for determining fitness for retention and utilized those procedures and standards in evaluating individuals at that time.  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 then, existing fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his 2 June 1980, Under Other Than Honorable Conditions Discharge to a General Discharge was carefully considered, however, is not supported by the evidence of record. 

2.  He has not submitted sufficient evidence or a convincing argument to prove he was suffering from PTSD while he was in the Regular Army or that his acts of misconduct were directly related to his PTSD.  The fact he later enlisted in the NJARNG, and was later discharged on 1 August 1996 for PTSD does not show an error or injustice in the type of discharge he received on 2 June 1980.  

3.  The evidence shows he was charged with numerous violations under the UCMJ.  Court martial charges were preferred against him; however, he voluntarily submitted a request for discharge for the good of the service - in lieu of trial by court-martial.  His brigade commander and the GCM Convening Authority supported his request.

4.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

5.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.

6.  He applied to the ADRB for an upgrade of his discharge; however, based on his record of indiscipline, the ADRB did not upgrade his discharge and determined he was properly and equitably discharged. 

7.  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 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)                                         AR20100017678





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017678



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1