IN THE CASE OF:
BOARD DATE: 26 May 2011
DOCKET NUMBER: AR20100030464
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 discharge under other than honorable conditions be changed to a medical discharge.
2. The applicant states he had a serious concussion during his service and his discharge should have been an honorable medical discharge.
3. The applicant provides:
* letter from a Veterans Service Office
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 4-page self-authored affidavit
* Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim)
* support letters from family and friends
* medical records from active duty
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ))
* DA Form 2-1 (Personnel Qualification Record)
* record of work history
* traumatic brain injury (TBI) symptoms affidavit
* article excerpts regarding TBI and aggression
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 on 19 April 1979. His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 63T (Track Vehicle Mechanic). The highest rank/grade he attained while serving on active duty was specialist/E-4.
3. The applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ on 19 August 1979 for failing to go at the time prescribed to his appointed place of duty and on 28 March 1981 for causing a breach of peace and wrongfully engaging in a fight.
4. On 19 June 1981, charges were preferred against the applicant for aggravated assault and assault on a noncommissioned officer in the performance of his duties.
5. On 19 July 1981, 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 a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, 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 trial by court-martial. The applicant indicated he understood that by requesting discharge, he was admitting guilt to the charges 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 if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.
6. On 20 July 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed that he be issued an under other than honorable conditions discharge.
7. There is no evidence in the available records and the applicant did not provide any evidence that shows he was medically disqualified from performing military duties at the time of his separation. Records show the applicant elected not to undergo a medical separation physical examination at the time of separation.
8. On 1 September 1981, the applicant was discharged accordingly. The DD Form 214 he was issued shows he completed a total of 2 years, 4 months, and 13 days of creditable active military service with no lost time.
9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10. The applicant provided a self-authored 4-page affidavit, a letter from a Veterans Service Office, statements from family and friends, military personnel documents, and medical documents which essentially state that his physical altercation with another individual while on active duty resulted in a TBI.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate.
12. Army Regulation 635-200, 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.
13. 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.
14. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. The disability must not have resulted from the Soldiers intentional misconduct or willful neglect. The disability must not have been incurred during a period of unauthorized absence.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.
2. The applicant was charged with aggravated assault which is punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service.
3. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to either an honorable or a general discharge.
4. Evidence shows that his act of indiscipline of wrongfully engaging in a fight resulted in his head injury. The applicant alleges he suffers from a TBI; however, at the time of separation he elected not to undergo a medical separation physical examination. In addition, the disability resulted from his own misconduct. Based on the foregoing, it appears he would not have been eligible for disability processing and medical separation.
5. The ABCMR does not grant requests for discharge upgrades or changes solely for the purpose of making the applicant eligible for veterans' or medical benefits.
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 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) AR20100030464
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100030464
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110013903
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions discharge to a general discharge (GD). The evidence of record does not support the applicant's request for upgrade of his under other than honorable conditions discharge to a GD.
ARMY | BCMR | CY2011 | 20110015792
The applicant requests his under other than honorable conditions discharge be upgraded to a general discharge. The next day, the section sergeant told him he was the "wrong color" to be in the company. The examining doctor noted these conditions on the applicant's discharge physical based on what he was told by the applicant.
ARMY | BCMR | CY2014 | 20140012067
On 20 January 2012, the applicant was accordingly discharged. Likewise, on 21 May 2014, following his petition to the ABCMR for an upgrade of his discharge to fully honorable based on his claim of severe TBI, after careful review of his application, military records, and all other available evidence, the ABCMR determined there was insufficient evidence to support his contention and that he was properly and equitably discharged. Chapter 3 states, the Army, by law, may pay claims for amounts...
ARMY | BCMR | CY2013 | 20130018541
d. Chapter 4 states that a member who is charged with an offense for which she could be dismissed or given a punitive discharge may not be referred for physical disability processing. The applicant was not discharged because of any medical condition. She was discharged because she chose to go AWOL, not once or twice but multiple times, and extensively.
ARMY | BCMR | CY2015 | 20150001291
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or...
ARMY | BCMR | CY2014 | 20140003973
The applicant requests reconsideration of his previous request for correction of his records to show he was honorably discharged for medical reasons. His military records contain no evidence that he suffered from a mental disorder or medical condition that would have warranted his separation for disability. He claims his basic training experience involving the gas chamber affected his behavior and caused him to run away from the Army.
ARMY | BCMR | CY2010 | 20100022233
There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. There is no evidence and the applicant has not provided any which shows he was physically unfit to perform his duties at the time of separation. He declined a physical examination at the time of his separation and his mental evaluation, conducted on 3 April 1981 by a competent medical authority, determined he was mentally qualified...
ARMY | BCMR | CY2014 | 20140000612
The applicant provides: a. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.
ARMY | BCMR | CY2013 | 20130008702
On 13 January 2011, the Board granted the applicant an increased disability evaluation, voided his discharge, and directed he be retired with back pay and benefits. The first time the applicant was evaluated for PTSD was not until four years after he had been discharged. The applicant has not provided and the record does not show the applicant was diagnosed with PTSD or TBI while on active duty or that as a result of such conditions he was unfit for duty based on those conditions.
ARMY | BCMR | CY2010 | 20100007991
On 2 February 1984, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service. There are no service medical records available. Evidence of record shows the applicant's physical profile was 111111 on 25 May 1983, 2 years after his reported head injury.