BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008798 


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 correction of his under other than honorable conditions discharge to a general discharge, or a medical discharge. 

2.  The applicant states:

* He did very well as a Soldier but was stricken by a heavy, intense emotional blow and an extreme setback when he learned his younger brother had been murdered 
* He encountered difficulties with the Red Cross in that he was given help to travel home but without his family (pregnant wife and his two children)
* His goal was to be a career Soldier but the emotional stress put a damper on that
* While at home on leave he was seen by the family doctor; yet, when he returned from leave he was not given any medical assistance
* A few weeks later, he was struck with another tragic event when his father died
* He has had many emotional problems since he was discharged; he has not been able to obtain gainful employment
* Family issues caused him severe psychological distress and due to those conditions he was unable to function like a normal Soldier
* He was also under the care of a psychiatrist but this was not taken into consideration during his court-martial


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A personal check, dated 15 July 1981 
* His father's death certificate and obituary

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 AR20090021748, on 22 June 2010.

2.  The applicant submitted a new argument which was not previously considered; therefore, it is considered new evidence and as such, although not received within 1 year of the original decision, as an exception to policy, warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 22 May 1979 and he held military occupational specialty (MOS) 91B (Medical Specialist).  He was assigned to the 11th Medical Company, Fort Hood, TX.

4.  On 1 February 1980, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 15 February 1980.

5.  On 8 January 1981, he again departed his unit in an AWOL status but he returned to military control on 30 January 1981.  

6.  On 19 February 1981, he was convicted by a summary court-martial of one specification of being AWOL from 8 to 30 January 1981.  The court sentenced him to a reduction to E-2, a forfeiture of pay, and confinement at hard labor for
30 days.  The convening authority approved his sentence on 20 February 1981. The confinement was suspended.  

7.  On 2 June 1981, he again departed his unit in an AWOL status and on 2 July 1981, he was dropped from Army rolls as a deserter.  He returned to military control on 18 August 1981.  

8.  It appears subsequent to his return to military control his chain of command preferred court-martial charges against him for one or more specifications of being AWOL. 


9.  On 26 October 1981, he underwent a mental status evaluation at Fort Hood, TX.  His DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant: 

* behaved normally and was fully alert and oriented
* had a level mood, a clear thinking process, a normal thought content, and a good memory; he displayed no significant mental illness
* was mentally responsible, able to distinguish right from wrong, and able to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3

10.  On 16 November 1981, the applicant also underwent a medical examination for the purpose of discharge under chapter 10, Army Regulation 635-200 (Personnel Separations):

	a.  Standard Form (SF) 88 (Report of Medical Examination) shows in item 42 (Psychiatric (specify any personality deviation)) the examining physician determined he had no unusual psychiatric conditions.  Additionally, item 77 (Examinee) of this form shows he was qualified for separation.

	b.  SF 93 (Report of Medical History) that was rendered in conjunction with his separation physical examination shows in:

		(1)  In Item 11 (Have you ever had or have you now) he indicated he had experienced: cramps in his legs, venereal disease, foot trouble, depression or excessive worry, and nervous trouble.

		(2)  In Item 16 (Have you ever been treated for a mental condition?) of the applicant's SF 93, he indicated he had received psychiatric treatment in Texarkana, TX on 21 July 1981, due to serious family problems he was coping with which was having an adverse effect on his military duty performance.  The physician noted he had experienced intermittent depression for the past year and a half.

11.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his service records contain:

	a.  Orders 238-2, issued by Headquarters, 13th Corps Support Command, Fort Hood, TX, dated 1 December 1981, reducing him to private/E-1 effective 4 November 1981.
	b.  Orders 241-07, issued by Headquarters, 13th Corps Support Command, Fort Hood, TX, dated 4 December 1981, reassigned the applicant to the Adjutant General Transfer Point, Fort Hood for separation processing.  He had a report date of 10 December 1981.

	c.  A duly-constituted DD Form 214 that shows he was discharged on 14 December 1981 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  The narrative reason for separation was "Administrative Discharge - conduct triable by court-martial."  He completed 2 years, 2 months, and 11 days of creditable active military service and he had multiple entries of lost time. 

12.  There is no indication in the applicant's records that he was issued a permanent physical profile that warranted an MOS Medical Retention Board or that his medical condition warranted entry into the Physical Disability Evaluation System (PDES).  

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations. 

14.  On 22 June 2010, the Army Board for Correction of Military Records denied his petition for an upgrade of his discharge. 

15.  He provides a copy of a check, dated 15 July 1981, issued a medical doctor. He also provides his brother's death certificate and the front page of his brother’s memorial program.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 discharge under other than honorable conditions is normally considered appropriate.

17.  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.
18.  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.  

19.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, Human Resources Command

	c.  The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.   A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

20.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 14 December 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service. 

2.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request a discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

3.  The applicant's circumstances regarding the tragic death of his brother and father are noted.  However, they are not sufficiently mitigating in granting him the requested relief.  Additionally, the fact that the applicant experienced depression associated with family problems is duly noted and no doubt taken into consideration when the separation authority reviewed his case prior to determining the characterization of his service.  

4.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.

5.  With respect to the applicant's request for a medical discharge, his record is void of any evidence and he has not provided any evidence that shows he suffered an illness and/or a disease that was severe enough to render him physically unable to perform the duties required of his grade and military specialty.  

6.  Referral to the PDES is done through an established process.  He was never determined to be disqualified for retention.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his/her rank, grade or specialty and assign an appropriate disability rating before he/she can be medically separated.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army. 

7.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention or separation.  The available evidence does not show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty
* was referred to the Army PDES

8.  Even if he suffered an injury or an illness, 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

9.  Furthermore, even if he suffered an injury that did not manifest until years later, a key element of the Army disability system is the existence of a disabling condition at the time of separation.  Again, the Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be medically separated or retired.
10.  In view of the foregoing evidence, he is not entitled to the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090021748 dated 22 June 2010.



      _______ _  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)                                         AR20120008798



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ABCMR Record of Proceedings (cont)                                         AR20120008798



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