IN THE CASE OF:
BOARD DATE: 1 March 2012
DOCKET NUMBER: AR20110016258
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 reconsideration of an earlier request to upgrade his discharge under other than honorable conditions.
2. The applicant states:
a. Based upon a recent decision, dated 17 May 2011, the Department of Veterans Affairs (VA) determined he was eligible for health care and related benefits authorized under chapter 17 of Title 38, Code of Federal Regulations, for disability or disabilities incurred in line of duty during active service from 23 June 1977 through 30 November 1979. The decision supports his contention he was suffering from physically unfitting conditions at the time of his discharge.
b. He was court-martialed for stealing another Soldier's radio because he refused to pay him for a bet.
c. The mental and physical treatment inflicted upon him by military authorities caused and aggravated his post-traumatic stress disorder (PTSD) that led to the misconduct of being absent without leave (AWOL).
d. After suffering from some type of viral hepatitis and parasites, he was given a shaving profile that led to constant mistreatment by military authorities. This mistreatment worsened, it took a toll on him, and he was subsequently AWOL.
e. Clinical records clearly document early signs of PTSD prior to 21 April 1979 which is the first recorded incident of AWOL.
3. The applicant provides:
* VA decision letter
* medical records
* DA Form 2496 (Disposition Form)
* Social Security Administration Retirement, Survivors, and Disability Insurance
* Special Court-Martial Order Number 27
* evidence of post-service accomplishments
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100020354 on 17 February 2011.
2. The applicant provides an undated VA letter which states:
* his military service isn't honorable for VA purposes
* he and his dependents aren't eligible for any VA benefits for this period of military service
* only veterans with honorable service are eligible for VA benefits
* he is eligible for health care and related benefits authorized under chapter 17 of Title 38, Code of Federal Regulations, for any disability or disabilities incurred or aggravated in the line of duty during active service from 23 June 1977 through 30 November 1979
3. He also provides numerous newspaper articles about his boxing program, a nonprofit organization he operates, his foster care participation, and an invention he patented.
4. This documentation is new evidence that will be considered by the Board.
5. The applicant enlisted in the Regular Army on 23 June 1977 for a period of 3 years. He completed training and he was awarded military occupational specialty 11B (Infantryman).
6. On 31 July 1978, he was convicted by a special court-martial of stealing a radio/cassette player of a value of about $70.00.
7. A DA Form 3349 (Medical Condition Physical Profile Record), dated 20 March 1979, shows he was issued a 30-day temporary physical profile because a post-traumatic syndrome (now known as PTSD) work-up was in progress.
8. He 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 through 10 June 1979
* AWOL from 2 through 3 July 1979
* AWOL from 5 through 10 September 1979
9. A DA Form 3647-1 (Clinical Record Cover Sheet) , dated 18 June 1979, shows the examining psychiatrist diagnosed the applicant as having a character disorder with mixed antisocial and hysterical features that existed prior to service.
10. A Standard Form 513 (Clinical Record Consultation Sheet), 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 rendered a provisional diagnosis of PTSD.
11. On 20 July 1979, he underwent a separation physical examination and was found qualified for separation.
12. On 11 September 1979, he was AWOL and he returned to military control on 10 October 1979.
13. 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), 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.
14. On 15 October 1979, he consulted with counsel. 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. 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. He elected not to submit a statement in his own behalf.
15. 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 an Under Other Than Honorable Conditions Discharge Certificate.
16. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 30 November 1979 under the provisions of Army Regulation 635-200, chapter 10, for administrative discharge conduct triable by a court-martial. It appears the separation authority and narrative reason for separation shown on his DD Form 214 are incorrect. He completed 2 years and 11 days of active service.
17. On 21 March 1988, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
b. 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. 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 contends that a recent VA decision that determined he was eligible for health care and related benefits for disabilities incurred or aggravated in the line of duty during his active duty service supports his contention that he was suffering from physically unfitting conditions at the time of his discharge.
2. His also contends the mental and physical treatment inflicted upon him by military authorities caused and aggravated his PTSD that led to the misconduct of being AWOL. However, even though he was rendered a provisional diagnosis of PTSD on 26 June 1979, he was found qualified for separation.
3. The newspaper articles provided by the applicant fail to show his discharge was unjust and should be upgraded. Good post-service conduct alone is normally not a basis for upgrading a discharge.
4. A discharge is not changed for the purpose of obtaining VA benefits.
5. Since his record of service included four instances of nonjudicial punishment, his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.
6. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement at the time in which he could have voiced his concerns; however, he elected not to do so.
7. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.
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 to amend the decision of the ABCMR set forth in Docket Number AR20100020354, dated 17 February 2011.
_______ _ 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) AR20110016258
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ABCMR Record of Proceedings (cont) AR20110016258
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