IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110004221 


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 show he received a medical discharge.

2.  The applicant states the documents he submits show he currently has the same issues and symptoms that he exhibited during his service from 31 May 1973 to 20 April 1976.

3.  The applicant provides 21 pages of Department of Veterans Affairs (VA) progress notes, a doctor's statement, and two statements of support.

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 records show he enlisted in the Regular Army on 30 August 1971 and he held military occupational specialty (MOS) 67U (CH-47 Helicopter Repairman).  He served in Vietnam from on or about 16 July 1972 to 9 February 1973 while assigned to the 62nd Aviation Company.

3.  On 9 February 1973, he was medically evacuated from Vietnam and assigned to the Medical Hold Company, Fort Dix, NJ.  A DA Form 3349 (Medical Condition – Physical Profile Record), dated 15 February 1973, shows he was given a 60-day temporary profile for "emotional and attitudinal problems which might compromise his judgement and reliability."

4.  On 16 February 1973, he was assigned to Headquarters Company, U.S. Army Training Center Infantry and Fort Dix, Fort Dix, NJ, in duty MOS 67U.

5.  On 30 May 1973, he was honorably discharged for the purpose of immediate reenlistment on 31 May 1973.  He appears to have been fully qualified for reenlistment on that date.

6.  On 14 May 1974, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.

7.  On 27 November 1974, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty.

8.  On 25 February 1975, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) and damaging private property.

9.  On 25 March 1975, he received NJP under the provisions of Article 15, UCMJ, for being drunk and disorderly.

10.  On 9 April 1975, he received NJP under the provisions of Article 15, UCMJ, for twice failing to go to his appointed place of duty, disobeying a lawful order, damaging private property, and for being drunk and disorderly.

11.  On 2 June 1975, his immediate commander recommended a bar to reenlistment be placed against the applicant and stated the applicant did not respond to counseling, he repeatedly failed to report to his place of duty, he left his place of duty without permission, his disregarded his military appearance and military courtesy, and he displayed uncontrollable outbursts toward authority.  On 24 June 1975, the approving authority approved the request and a Bar to Reenlistment Certificate was imposed against him.

12.  On 26 June 1975, he was convicted by a special court-martial of wrongfully appropriating a military vehicle and neglectfully allowing it to strike a tree.  He was sentenced to reduction to private/E-1, forfeiture of $229.00 pay for 6 months, and confinement for 110 days.

13.  On 24 October 1975, he received NJP under the provisions of Article 15, UCMJ, for missing unit movement.

14.  Item 21 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows he was AWOL as follows:

* 3-6 November 1975
* 11-11 December 1975
* 19 December 1975-21 March 1976

15.  On 23 March 1976, court-martial charges were preferred against him for one specification of being AWOL from 19 December 1975 to 22 March 1976.

16.  On 28 March 1976, he underwent a separation physical and he was found qualified for separation.

17.  On 15 April 1976, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

18.  In his request for discharge, he acknowledged he understood if his discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

19.  In a statement he submitted on his own behalf, he stated that having been a Soldier in combat he knew how adherence to Army regulations and requirements were.  He began to use alcohol to excess when he did not get promoted and his duty performance and attitude became substandard.  He had no excuse for his behavior other than frustration and the resultant alcohol abuse.  He did not feel he was an asset to the Army and wanted to be discharged but hoped he would not be recommended for an undesirable discharge.

20.  On 20 and 22 April 1975, his senior commanders recommended approval of his request for a discharge with an Undesirable Discharge Certificate.

21.  On 26 April 1975, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a separation program designator of JFS and directed the issuance of an Undesirable Discharge Certificate.

22.  On 30 April 1976, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an under other than honorable conditions character of service.  He completed 2 years, 4 months, and 25 days of creditable active service during this period with 185 days of lost time due to confinement and AWOL.

23.  His records do not indicate he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES).

24.  On 11 July 2002, the ABCMR denied his request to upgrade his discharge.

25.  The applicant provides 21 pages of VA Medical Center (VAMC) progress notes, dated between 13 April and 13 August 2010, wherein they show the applicant was enrolled in the post-traumatic stress disorder (PTSD) program at the VAMC, Detroit, MI, after being diagnosed with PTSD.  These notes state the applicant reported PTSD symptoms related to his combat experience in Vietnam where he was a crew chief and flew daily missions for 6 months.  He was shot down once and saw significant combat.  Since then he has had problems with sleep, nightmares, irritability with others, and startles easily.  It further states he served in the U.S. Army from 1971 to 1975, was a helicopter repairman, was assigned in Vietnam as a flight engineer and crew chief, and he received an honorable discharge.

26.  He also provides a letter, dated 28 April 2011, wherein Dr. S____, a staff psychiatrist at the VAMC, Detroit, MI, states the applicant had been diagnosed with PTSD and was in treatment for it at the VAMC.  He was deployed to Vietnam for 6 months and he was exposed to combat and several traumatic experiences.  He shared his documents regarding disciplinary actions brought against him while he was in the service.  Based on that information, his symptoms at that time indicated they were related to untreated PTSD.

27.  In two statements of support, dated 12 May 2009 and 28 January 2011, a former coworker states the applicant was a team player and tried to complete his job responsibilities as well as possible, but he had difficulty at work due to his medical issues.  A friend states she has known the applicant for 10 years, he has problems keeping jobs because of his medical issues, he has problems sleeping and was usually depressed, irritable, impatient, and quick tempered.  However, he is a good person but in his mind the war has not ended.

28.  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 included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

29.  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.

30.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.  It provides for medical evaluation boards (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).

31.  Army Regulation 635-40 further states 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

32.  Army Regulation 40-501 does not list alcohol abuse as a condition that requires referral to the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant 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.  As such, he voluntarily requested discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he was AWOL for 95 days at the time he was returned to military control.  He received NJP on six other occasions and was convicted by a special court-martial for wrongfully appropriating a military vehicle.  Based on his record of misconduct, his 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 an honorable or a general discharge.

3.  With respect to a medical discharge, there is no evidence in the applicant's records and he did not provide any evidence to show he was diagnosed with or suffered from PTSD or any medical condition that limited his ability to perform in his grade and MOS or that would have warranted entry into the PDES.  In his request for discharge from the Army, he stated he had no excuse for his behavior other than frustration that came from not getting promoted and the resultant alcohol abuse.
 
4.  Additionally, the medical documents he submitted show he was diagnosed with PTSD in 2010.  A current diagnosis of PTSD does not indicate he suffered from PTSD at the time of his service over 35 years ago.

5.  In view of the foregoing evidence, there is insufficient evidence to grant him a medical discharge.



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)                                         AR20110004221



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ABCMR Record of Proceedings (cont)                                         AR20110004221



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