BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120006704 


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 an upgrade of his discharge to medical or an honorable.

2.  The applicant states he has post-traumatic stress disorder (PTSD) and he had the condition at the time of discharge.

3.  The applicant provided a copy of his DD Form 214 (Report of Separation from Active Duty).

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 on 10 September 1975 and served in Germany as a Motor Transport Operator, military occupational specialty 64C.  He was promoted to the grade of private first class.  

3.  Records show the applicant received punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for:

a. 8 July 1976, Failed to obey a lawful command;

b. 4 October 1976, Theft and improper display of license plates;

c. 9 May 1977, Indecent liberties with a female under 16 years of age; and

d. 11 August 1977, Possession of marijuana.

4.  On 15 September 1977, charges were filed against the applicant for unlawfully entering the barracks room of a female Soldier and committing indecent assault upon the victim by attempting to remove her underpants.

5.  On 1 October 1977, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible penalty under the UCMJ, the possible effects of an other than honorable discharge, and of the procedures and rights available to him.  Following receipt of legal counsel, the applicant voluntarily requested separation from the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged that discharge under other than honorable conditions could deprive him of many/all Army benefits and that he would be ineligible for many or all benefits offered by the Veterans Administration (VA) as well as other rights under federal and state law.

7.  On 13 October 1977, the applicant underwent a mental status evaluation which indicated no significant mental illness and the ability to distinguish right from wrong.  There is no evidence in the available records which indicates the applicant was diagnosed or treated for PTSD during his military service.

8.  On 21 October 1977, the separation authority approved the applicant’s request for discharge and directed he receive an under other than honorable conditions discharge.  On 14 November 1977, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 
2 years, 2 months, and 5 days of creditable active military service.

9.  On 4 February 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, when a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  At the time, an under other than other conditions discharge is normally considered appropriate.

11.  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  (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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.  

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  The mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The record does not support the applicant’s claim.   

2.  The applicant was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  His service included a pattern of indiscipline including disobeying orders, theft, indecent assault, and, possession of marijuana.  All the requirements of law and regulation were met and his rights were protected during his separation.  His discharge accurately characterizes his overall service.

3.  Aside from a copy of his DD Form 214, the applicant did not provide any documentation supporting his request.  The only evidence available is that which was available to his chain of command.  Based on his record of indiscipline, the applicant’s service clearly did not meet the standards for an honorable discharge.  Additionally, the absence of evidence substantiating his claim of PTSD or that PTSD or any other medical condition prevented him from performing his duties precludes a discharge on medical grounds.  As a result, the applicant is not entitled to a change in characterization of his service or a medical discharge.

4.  Based on his record of indiscipline, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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 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)                                         AR20120006704



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006704



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1