IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019224 


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 his earlier request for upgrade of his under other than honorable conditions (UOTHC) discharge to a medical discharge.  As a new issue, he also requests an upgrade of his UOTHC to a general discharge.  

2.  He states he was suffering from a psychological condition when he entered the military.  

3.  He provides a psychological evaluation report, his DA Form 4384-R (Commander’s Report of Inquiry/Unauthorized Absence), and a letter from his employer.  

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 AR20100008950 on 17 August 2010.

2.  The applicant provided new evidence that will be considered by the Board.

3.  On 7 February 1976, the applicant enlisted in the Massachusetts Army National Guard.  On 16 May 1976, he entered active duty for training.  He completed the training requirements and he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was honorably released from active duty for training on 14 September 1976 to the control of his ARNG unit.

4.  Orders 251-1, dated 29 November 1978, show he was discharged from the ARNG, on 2 December 1978, with a general discharge and he was transferred to the U.S. Army Reserve.

5.  His records show he was ordered to active duty on 3 December 1978 and he was assigned to the 707th Maintenance Battalion, Fort Ord, CA.

6.  His medical records do not indicate he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES).  However, he previously submitted a medical document, dated 26 July 1979, that shows he sustained some pain to his upper back due to lifting an engine.  He was prescribed medications and ordered to return to duty.  

7.  On 1 October 1979, he departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from Army rolls on 30 October 1979.  He surrendered to military authorities on 2 June 1981 at Fort Ord, CA.

8.  He provided the following documents in support of his claim:

   a.  Newspaper article which shows he sustained multiple injuries in a car accident when he was 15 years old and his brother was killed.  

   b.  DA Form 4384-R, dated 1 October 1979, which shows his commander cited possible contributing factors that caused the applicant to go AWOL and evidence of the applicant’s intent not to return:

        (1)  The "applicant’s girlfriend in the area visiting.  Scare from CID [Criminal Investigation Division] investigation."

        (2)  The applicant moved all his civilian clothes and military items to the guest house where his fiancé was staying.  The commander looked in the room and the maid said they (the applicant and his fiancé) had cleared the room on 
28 September 1979, but the applicant told her they would be back to check out.  They did not go to housing and he had an outstanding bill of $49.00.  

	c.  A letter, dated 22 September 2010, from an employer who stated the applicant completed quality control measures that helped his company to provide quality products to the customer’s specifications.  The applicant was always there when needed him and he completed all tasks as required.  

	d.  A psychological evaluation report, dated 14 June 2011, shows the results of this evaluation were consistent with a diagnosis of post-traumatic stress disorder chronic secondary to a highly abusive and neglected childhood.  In addition, the applicant suffered from polysubstance dependency when he was in the service and appeared to have made a series of poor decisions due to being extremely young and lacking adequate guidance.  

9.  The facts and circumstances of his discharge are not available.  However, his records contain the following documents:

	a.  A DD Form 458 (Charge Sheet), dated 31 October 1979, shows court-martial charges were preferred against him for one specification of being AWOL from on or about 1 October 1979 through an undetermined date.

	b. Orders 190-456, Headquarters, 7th Infantry Division, Fort Ord, CA, reassigning him to the U.S. Army Separation Transfer Point effective 30 September 1981.

	c.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 September 1981 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial with a UOTHC discharge.  He completed 1 year, 1 month, and 23 days of creditable active service during this period and he had 610 days of lost time.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

11.  His service record is void of evidence which shows he was diagnosed with a psychological condition prior to entering the military.  

12.  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 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, a UOTHC discharge is normally considered appropriate.



13.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

15.  Army Regulation 635-40, paragraph 4-3 states that an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he suffered from a psychological condition when he entered the military is acknowledged.  However, his service record is void of evidence to support his claim.  

2.  The psychological report provided by the applicant was performed subsequent to his service in the military and there is no evidence he was diagnosed with this mental condition while he was in the military.  

3.  There is no evidence in the available records and he failed to submit any evidence that shows he suffered from a medical condition that limited his ability to perform in his grade and MOS or that would have warranted entry into the PDES.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant’s discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the request for reconsideration, 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 to amend the decision of the ABCMR set forth in Docket Number AR20100008950, dated 17 August 2010.

2.  In regard to the new issue, 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)                                         AR20110019224



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ABCMR Record of Proceedings (cont)                                         AR20110019224



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