IN THE CASE OF:
BOARD DATE: 4 August 2011
DOCKET NUMBER: AR20110002468
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 an upgrade of his discharge to honorable or change to by reason of medical disability.
2. The applicant states he was suffering from post-traumatic stress disorder (PTSD) while in service. He claims as a result of this, his discharge should be upgraded or changed to a medical discharge. He states he requested his discharge be upgraded for this reason prior to his discharge but was never evaluated.
3. The applicant provides 2010 and 2011 Department of Veterans Affairs (VA) medical record documents in support of his application.
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 enlisted in the Regular Army on 17 October 1990. He was trained in and awarded military occupational specialty 88M (Motor Transport Operator) and private first class/E-3 is the highest rank/grade he attained while serving on active duty.
3. The applicant's record shows he served in Southwest Asia (SWA) from 1 February through 31 May 1991 and earned the following awards during his active duty tenure:
* Army Commendation Medal
* National Defense Service Medal
* Army Service Ribbon
* SWA Service Medal with two bronze service stars
* Kuwait Liberation Medal
4. The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 January 1992 for four specifications of failing to go to his appointed place of duty at the time prescribed between 20 November and 18 December 1992, damaging personal property of another Soldier, striking another Soldier, and for being drunk and disorderly.
5. The applicant's record is void of any medical treatment records or other documents indicating he was suffering from a physically or mentally disqualifying medical condition that would have warranted his separation processing through medical channels.
6. On 1 July 1992, the unit commander notified the applicant that he intended to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, by reason of unsatisfactory performance. He stated the applicant's potential for further advancement and leadership was unlikely and that the applicant's retention would have an adverse impact on military discipline, good order, and morale. He also indicated the applicant was not amenable to rehabilitation.
7. On 1 July 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, the rights available to him, and the impact of a waiver of those rights. Subsequent to this counseling, the applicant submitted a statement in his own behalf. He requested to receive an honorable discharge based on his service in the Persian Gulf and on his desire to qualify for the GI Bill to complete his education.
8. On 1 July 1992, the separation authority approved the applicant's discharge by reason of unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and directed the applicant receive a general under honorable conditions discharge. On 15 July 1992, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he held the rank of private/E-2 and he completed a total of 1 year, 8 months, and 29 days of creditable active military service.
9. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. On 23 December 1996, after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper and equitable and voted unanimously not to change the character or reason for discharge.
10. The applicant provides VA medical records for 2010 and 2011 which indicate he suffers from service-connected PTSD. These give no specific date when this condition was diagnosed and do not rely on service medical records.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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.
12. Chapter 13 of Army Regulation 635-200 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.
13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army's Physical Disability Evaluation System (PDES). Chapter 3 contains PDES policies.
14. Paragraph 3-1 of Army Regulation 635-40 outlines standards of unfitness because of physical disability. It states the mere presence of an 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. In evaluating a Soldier's fitness to perform duties all relevant evidence must be considered. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.
15. Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions. It states that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. This presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank, or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions or an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to change the type of discharge he received because he was suffering from PTSD at the time of his discharge has been carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record is void of any military medical treatment records and the applicant failed to provide any showing he was diagnosed or treated for PTSD prior to his discharge processing.
3. The VA medical documents provided by the applicant are all dated in 2010 and 2011 and while they indicate he suffers from service-connected PTSD, they do not rely on military medical records and there is no indication when this condition was diagnosed. Therefore, absent any evidence confirming this condition rendered him unfit for further service at the time of his discharge processing, it is not sufficiently mitigating to support granting the requested relief.
4. The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His disciplinary history includes his acceptance of NJP which clearly diminished the overall quality of his service below that meriting a fully honorable discharge. As a result, his record did not support the issuance of an honorable discharge by the separation authority at the time and does not support an upgrade now.
5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement.
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.
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