IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110019055 


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 correction of his records to show he was honorably discharged on 25 January 1972, by reason of physical disability.

2.  The applicant states, in effect:

* the Department of Veterans Affairs (VA) will not consider his claim for service-connected compensation for the period 9 September 1968 to 25 January 1972
* the stressful incidents that occurred while he was in the Army caused his post traumatic stress disorder (PTSD)
* his disability and handicaps are factors that caused him to request a discharge
* he was discharged at his own request, not at the Army's request
* he reentered the Army on 19 April 1974 and he found that he could not beat the PTSD he had acquired from his previous enlistment
* he was unable to beat PTSD, he requested and received a trainee discharge on 20 September 1974, which was under honorable conditions
* he is qualified for veterans benefits based on his service and experience

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 25 April 2011, and two self-authored letters written to the Veterans' Service Center (undated).



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 (RA) for 3 years on 9 September 1968.  He completed the training requirements and he was awarded military occupational specialty 25J (Operations Central Repairer).  On 1 July 1969, he was honorably discharged for the convenience of the government.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 9 months and 24 days of net active service this period.  

3.  On 2 July 1969, the applicant reenlisted for 3 years.

4.  He accepted nonjudicial punishment (NJP) on three separate occasions between 26 September and 15 December 1969 for the following offenses:

* operating a motor vehicle on Fort Bliss, Texas, without a post vehicle registration
* two specifications of failure to obey a lawful order
* being disrespectful in language towards another Soldier who was in the execution of his duty
* leaving his post before he was relieved

5.  On 20 July 1970, the applicant was convicted by a special court-martial of:

* two specifications of failure to go to his appointed place of duty
* being absent without leave (AWOL) from 8 May to 11 May 1970
* two specifications disobeying a lawful order
* being disrespectful in language towards a noncommissioned officer
* breaking restriction


6.  On 10 June 1971, the applicant was notified that charges were pending against him for being AWOL from 23 February to 4 June 1971.  He acknowledged receipt of the notification on 18 June 1971.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 6735-200, chapter 10, for the good of the service in lieu of trial by court-martial.

7.  The appropriate authority approved the request for discharge on 11 November 1971.  The applicant was discharged on 25 January 1972, under the provisions of Army Regular 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with an Undesirable Discharge Certificate.  He had completed 1 year, 11 months, and 18 days of net active service this period.  

8.  On 19 April 1974, the applicant enlisted the RA for 3 years.  

9.  On 22 August 1974, he was notified that he was being recommended for discharge for unsuitability.  On 23 August 1974, he had NJP imposed against him for failure to obey a lawful order.  He acknowledged receipt of the notification on 28 August 1974.

10.  The appropriate authority approved the recommendation for discharge on 16 September 1974 and directed the issuance of a General Discharge Certificate.  The applicant was discharged on 20 September 1974, under the provisions of Army Regulation 635-200, chapter 13-5b(3), due to unsuitability – apathy, defective attitudes or inability to expend effort constructively.  He had completed 5 months and 2 days of net active service this period.

11.  The applicant's official military records do not contain evidence showing he was suffering from PTSD or any other physical disability that would have warranted him being processed for discharge through medical channels.

12.  The applicant submits two letters written to the Veterans' Service Center explaining why he believes he is entitled to service-connected disability compensation.  He states:

* stressful incidents are what created his PTSD
* he accepted NJP after complaining about another Soldier to his battery commander and he ended up in solitary confinement eating rabbit chow
* he got out of solitary confinement and was put back in confinement, all the time being harassed, degraded, and told he was a screw-up
* he watched a 17-year old black kid cut his wrist with a piece of glass and die before he got proper medical attention
* he could not protect himself from the deliberate targeting nor the deliberate design to disgrace him through his military service
* his disability and handicaps are the coercion factors as to why he requested a discharged under the provisions of Army Regulation 635-212
* he had PTSD from 9 September 1968 to 25 January 1972
* he was discharged at his own request, not at the Army's request
* he couldn't beat the PTSD he had acquired from his previous military experience

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.
   
   b.  Paragraph 3-7a states 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 states 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.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

15.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  There is no evidence in the available record nor has the applicant submitted any evidence showing he was diagnosed with PTSD while he was in the Army.  There is also no available evidence showing he had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  His record shows he was AWOL on numerous occasions and he was convicted by a special court-martial for his acts of misconduct.  Charges were pending against him and he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court.

4.  The applicant has not shown error or injustice in the reason for his discharge or the type of discharge he received in 1972.  The fact that the VA will not consider his claim for service-connected compensation for his period of service between 9 September 1968 and 25 January 1972 is not a basis for upgrading his undesirable discharge or showing he was discharged by reason of physical disability, due to PTSD.

5.  In view of the foregoing, his 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)                                         AR20110019055



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ABCMR Record of Proceedings (cont)                                         AR20110019055



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