IN THE CASE OF:	  

		BOARD DATE:	 13 March 2012

		DOCKET NUMBER:  AR20110016282 


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, in effect, that the service of her late son, a former service member (FSM), be upgraded to honorable or general and restoration of his rank to private first class (PFC)/E-3 (which was the highest rank that he held).

2.  The applicant states, in summary, that the FSM deployed to Afghanistan in support of Operation Enduring Freedom and when he returned home in 2002 he was not the same person.  The applicant contends the FSM suffered from post-traumatic stress disorder (PTSD).  His illness went undiagnosed and the military failed to provide him proper medical treatment.

3.  The applicant provides:

* DD Form 214, dated 7 April 2000, Army National Guard (ARNG)
* DD Form 214, dated 20 March 2003, Regular Army (RA)
* Birth Certificate, FSM
* Death Certificate, FSM
* Deployment Orders and allied documents
* Post-Service Medical Treatment Records (2003 - 2007)

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 complete facts and circumstances surrounding the FSM's discharge are not available.  However, there are sufficient records to render a decision in this case.

3.  While in the ARNG, the FSM was ordered to active duty for training from 
2 November 1999 to 7 April 2000.  He was awarded military occupational specialty (MOS) 51R (Interior Electrician) and released to his unit in the rank of private/E-1.

4.  On 9 August 2001, the FSM enlisted in the RA in MOS 51R.  The available evidence shows the highest rank/grade he attained while serving on active duty was private/E-2.

5.  The Defense Finance Accounting Service records confirm the FSM received hostile fire/imminent danger pay and combat zone tax exclusion pay for Uzbekistan from 1 February to 16 July 2002.

6.  A DA Form 616 (Report of Return of Absentee) shows the FSM was absent without leave (AWOL) from Fort Stewart, Georgia from 17 September 2002 to 
30 January 2003.

7.  On an unknown date, charges were preferred against the FSM for being AWOL, failure to obey a lawful order, and wrongful use of a controlled substance.  On 9 March 2003, the FSM consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court martial.

8.  In his request for discharge, the FSM indicated that 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 that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affair (VA), and that he could be deprived of his rights and benefits as a veteran under Federal and State laws.

9.  On 10 March 2003, the discharge authority approved the FSM's request and directed that he be issued an under other than honorable conditions (UOTHC) discharge and reduced to the lowest enlisted pay grade. 

10.  The FSM was discharged on 20 March 2003 under the provisions of Army Regulation 635-200, chapter 10 with a UOTHC discharge.  He had completed 
1 year, 2 months, and 27 days of creditable service during this period of service and he had 134 days of lost time due to being AWOL.

11.  The FSM's active duty medical records are not available for review and the available personnel records do not contain a separation physical or a mental evaluation.

12.  The applicant provides the FSM's post-service medical treatment records which show he was diagnosed with PTSD and he received care and treatment from 2003 until 2007.

13.  On 18 July 2010, the Army Discharge Review Board found the FSM's discharge was proper and equitable and denied the applicant's request to change the character of service and/or the reason for discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 specifies that a member who 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.  The request may be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, states 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 requests that the FSM's service be upgraded to honorable or general and that his rank be restored to private first class.

2.  The FSM's record is void of the complete facts and circumstances that led to his discharge.  However, the available evidence shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  The available evidence is not sufficient to support the applicant's contentions that the FSM's 134 days of lost time were the direct result of undiagnosed and untreated PTSD.

3.  On 20 March 2003, the FSM was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with a UOTHC discharge.  Discharges under the provisions of chapter 10 are voluntary requests.  Therefore, the FSM was required to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  In addition, his request included an admission of guilt.

4.  His post-service medical records were carefully considered; however, a diagnosis of PTSD, even if he developed it while on active duty, does not, in and of itself, absolve the FSM's misconduct or entitle him to an upgrade of his discharge.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.

5.  In regard to restoring the FSM's rank to private first class, there is no evidence to show the FSM ever held the rank of private first class and based on the severity of his misconduct it would be inappropriate to restore his rank to the highest grade held, private (PV2).

6.  The applicant and all others concerned should know that this action related to upgrading of the FSM's discharge and restoration of his rank to the highest grade held in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's service in arms.

7.  In view of the above, the applicant's request should be denied.



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)                                         AR20110016282



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ABCMR Record of Proceedings (cont)                                         AR20110016282



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