IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20110000137 


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 under other than honorable conditions discharge be changed to a medical discharge.

2.  The applicant states:

* he never recovered from someone drugging him while assigned to the Reception Station   
* he suffers from post traumatic stress disorder (PTSD) and needs counseling and medicine
* he was discriminated against and should have received additional mental health treatment

3.  The applicant provided a copy of DD Form 214 (Report of Separation from Active Duty).

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 6 March 1974.  His records show he did not complete basic combat training.  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 April 1974 for being absent without leave (AWOL) for the period 20 March through 8 April 1974.

4.  On 25 April 1974, charges were preferred against the applicant for being AWOL for the period 14 April through 19 April 1974 and for being AWOL on 
20 April 1974 with the intent to permanently absent himself from the unit.  On
14 May 1974, the commander acknowledged that the applicant had not been informed of the charges.

5.  On 15 July 1974, charges were preferred against the applicant for being AWOL for the periods:

* 20 March through 8 April 1974
* 14 April through 2 July 1974 

6.  On 9 September 1974, charges were preferred against the applicant for being AWOL for the periods:

* 14 April 1974 through 1 July 1974
* 21 July 1974 through 9 September 1974

7.  On 30 September 1974, 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 honorable conditions, 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.

8.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of 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 were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  Records show the applicant underwent a separation medical evaluation and there was no evidence of diagnosis or treatment for PTSD or any other mental condition or drug use at the time of separation.   

10.  On 3 October 1974, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 8 October 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year,        1 month, and 28 days of creditable active service with 158 days time lost.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  There is no evidence in the applicant's personnel service record which shows that the applicant sought assistance from his chain of command or a chaplain for issues involving discrimination.  

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.
15.  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.

16.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant alleges that he never recovered from being drugged and  suffers from PTSD.  There is no evidence in his military records and the applicant has not provided sufficient evidence which shows he was diagnosed with PTSD or any other mental condition at the time of his discharge.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged medical condition.  Therefore, this argument is not sufficient to support his request to change his reason for discharge to a medical discharge.

3.  Although the applicant alleges he was a victim of discrimination during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged discrimination.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.



5.  The applicant's record shows he was charged with the commission of an offense 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.

6.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant's record of service shows he was AWOL 158 days.  Therefore, the applicant's discharge accurately reflects his overall record of service.

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)                                         AR20110000137



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ABCMR Record of Proceedings (cont)                                         AR20110000137



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