IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100020354 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge and change of his narrative reason for separation from administrative discharge conduct triable by a court-martial to a medical discharge.

2.  The applicant states the reason for his discharge was based on his conduct that was triable by court-martial.

   a.  He states that his medical records provide a chronological progression of his medical issues.  He also states:
   
   	(1)  he was given a shaving profile and, as a result, he was constantly harassed and disciplined by military authorities;

   	(2)  this mistreatment worsened, it took a toll on him, and he subsequently went absent without leave (AWOL);

   	(3)  he was exposed to a virus during his overseas service in Korea;

   	(4)  while he was being considered for administrative discharge he underwent a medical examination;


   	(5)  his medical records show he displayed signs of depression and he was diagnosed with post-traumatic stress disorder (PTSD); and

   	(6)  he was stripped of his rank and medals and discharged.
   
   b.  He was not aware of information in his medical records about his PTSD until just recently.  He adds, as a result his administrative discharge was unjust and he should have been medically discharged.

3.  The applicant provides copies of his administrative separation packet,
DD Form 214 (Certificate of Release or Discharge from Active Duty), and documents from his medical records.

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 enlisted in the Regular Army on 23 June 1977 for a period of
3 years.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).

3.  At a special court-martial in July 1978, the applicant was found guilty of stealing a radio/cassette player of a value of about $70.00.

   a.  He was sentenced to be reduced to private (PV1)/E-1, forfeiture of $100.00 pay per month for four months, and confinement at hard labor for 105 days;

   b.  On 29 August 1978, the convening authority approved the sentence and ordered it executed;


   c.  On 24 October 1978, the unexecuted portion of the sentence to confinement at hard labor for 105 days was suspended until 22 February 1979, at which time, unless sooner vacated, it would be remitted without further action; and

   d.  On 13 December 1978, the suspended portion of the sentence was remitted.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:
   
   a.  item 9 (Awards, Decorations and Campaigns) the Marksman Marksmanship Qualification Badge with (M-16) Rifle Bar and Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and

   b.  item 18 (Appointments and Reductions) he was reduced to PV1/E-1 with an adjusted date of rank of 3 January 1979.

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on four separate occasions for being:

* AWOL from 21 April through 10 May 1979
* AWOL from 8 June through 10 June 1979
* AWOL from 2 July  through 3 July 1979
* AWOL from 5 September through 10 September 1979

6.  On 11 September 1979, the applicant went AWOL and he was dropped from the rolls (DFR) of his unit.  He returned to military control on 10 October 1979 and he was confined by military authorities.

7.  On 12 October 1979, the company commander notified the applicant of his intent to initiate separation action under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Separations), chapter 14 (Separation for Misconduct), paragraph 14-33b(1), for frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised of his rights and of the separation procedures involved.

8.  On 15 October 1979, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.


   a.  He waived his right to have his case considered by an administrative separation board, to personally appear before an administrative separation board, and to present matters in person and through counsel to the board;

   b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him; and

   c.  He elected not to submit a statement in his own behalf and he placed his signature on the document.

9.  On 18 October 1979, the applicant was released from confinement and returned to his unit.  On 19 October 1979, the applicant was placed in an excess leave status pending approval of his separation action.

10.  On 5 November 1979, the installation commander recommended approval of the applicant's separation action.

11.  On 13 November 1979, the separation authority approved the separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He also directed the issuance of Under Other Than Honorable Conditions Discharge Certificate and Separation Program Designator (SPD) Code "JKA."

12.  The applicant's DD Form 214 shows he was discharged on 30 November 1979.  At the time he had completed 2 years and 11 days of net active service. 

   a.  Item 18 (Remarks) shows the applicant was in an excess leave status for 44 days from 19 October through 30 November 1979.

   b.  The DD Form 214 also shows in:

* item 24 (Character of Service) the entry "Under Other Than Honorable Conditions"
* item 24 (Separation Authority) the entry "Chapter 10, Army Regulation 635-200"
* item 26 (Separation Code) the entry "JFS"
* item 28 (Narrative Reason for Separation) the entry "Administrative Discharge Conduct Triable By A Court-Martial"


   c.  Item 29 (Dates of Time Lost During This Period) shows the applicant had time lost from 31 July - 19 October 1978, 16 - 19 March 1979, 21 April - 21 May 1979, 8 - 10 June 1979, 29 June - 2 July 1979, 5 - 10 September 1979, and
11 September - 9 October 1979.

13.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service based on conduct triable by court-martial.

14.  On 21 March 1988, the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.

15.  In addition to his separation packet and DD Form 214, the applicant provides copies of his medical records for the period 2 December 1977 to 28 August 1979.

   a.  The records document the applicant's medical treatment for chicken pox, a shaving profile, low back pain, a head and neck injury from a fall, viral hepatitis B, congestive prostatitis, flu-like symptoms, various aches and pains throughout his body, and sharp pain after having swallowed glass found in a hamburger.

   b.  A Standard Form (SF) 513 (Clinical Record - Consultation Sheet), dated
7 November 1978, shows the examining physician noted the applicant was diagnosed with hepatitis on 18 September 1978; however, laboratory tests were returned to the physician, and he noted "[applicant] does not have hepatitis."

   c.  A DA Form 3647-1 (Clinical Record Cover Sheet), dated 27 February 1979, shows the examining psychiatrist observed no psychiatric illness, syncope or myalgia in the applicant.

   d.  A DA Form 3349 (Medical Condition - Physical Profile Record), dated
20 March 1979, shows the applicant was issued a 30-day temporary profile because a post-traumatic syndrome work-up was in progress.

   e.  An SF 513 shows a physician in the Neurology Clinic, Fort Ord, CA, performed a Brain Scintigraphy on the applicant on 22 May 1979 and found no scintigraphic evidence to suggest hypervascularity, vascular insufficiency, or space-occupying lesion.

   f.  A DA Form 3647-1, dated 18 June 1979, shows the examining psychiatrist diagnosed the applicant as having a character disorder, mixed antisocial and hysterical features that existed prior to service (EPTS).
   
   g.  An SF 513, dated 26 June 1979, shows the applicant complained of chronic headaches.  The examining physician found the applicant's neurological evaluation was within normal limits and he provided a provisional diagnosis of PTSD.

   h.  An SF 88 (Report of Medical Examination), dated 20 July 1979, shows the examining physician found the applicant qualified for separation.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-1 provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

17.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides 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.

   b.  Chapter 3, 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.

   c.  Chapter 3, 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.

18.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and SPD codes to be entered on the DD Form 214.  For enlisted Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10, it shows SPD code "JFS" with the narrative reason "Administrative Discharge Conduct Triable by Court-Martial."

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his character of his service should be upgraded because he was diagnosed with PTSD and his reason for separation should be changed to a medical discharge.

2.  The applicant's contentions were carefully considered.

   a.  Records show the applicant was disciplined by military authorities for violations of the UCMJ (i.e., stealing and AWOL).  There is no evidence and the applicant provides insufficient evidence to show he was constantly harassed by military authorities.

   b.  Records show the applicant was reduced to PV1/E-1 on 3 January 1979. There is no evidence he was advanced to private PV2/E-2 subsequent to that date.  He was discharged on 30 November 1979 in the rank of PV1/E-1.  In addition, there is no evidence the applicant's two marksmanship badges were revoked.  Thus, the evidence does not support the applicant's contention that he was "stripped" of his rank and medals at the time of his discharge.

   c.  The U.S. Army medical records he provides show that on 26 June 1979 the examining physician provided a provisional [emphasis added] diagnosis of PTSD.  However, on 20 July 1979, during the applicant's pre-separation medical examination, the examining physician found the applicant qualified for separation.

3.  There is no evidence, and the applicant provides insufficient evidence, to show he was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Thus, the evidence does not support the applicant's contention that he had a physically unfitting condition at the time of his discharge.  Therefore, the applicant is not entitled to a medical discharge.

4.  Despite the absence of the applicant's separation packet under the provisions of Army Regulation 635-200, chapter 10, the applicant acknowledges the reason for his discharge was based on his conduct that was triable by court-marital.  In addition, his DD Form 214 confirms this as the reason for his discharge.

5.  The regulations governing the Board’s operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  Records show the applicant was AWOL for 158 days (i.e., a more than
5 months) and he completed only about 2 years of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a discharge upgrade.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100020354



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ABCMR Record of Proceedings (cont)                                         AR20100020354



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