IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120016024


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, upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he was the victim of an attack while in the service and he suffers from memory loss because of his injuries
* following his service in the war [Operations Desert Shield/Storm] he showed signs of post-traumatic stress disorder (PTSD)
* he doesn't understand why he received an under other than honorable conditions discharge
* he can't recall consulting with counsel during his discharge proceedings, and he wasn't properly "debriefed"

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 638 (Recommendation for Award (for Other than Valor) of Army Achievement Medal (AAM), Army Commendation Medal (ARCOM), and Meritorious Service Medal (MSM)), dated 18 April 1991
* DA Form 4980-18 (Army Achievement Medal Certificate), dated   10 June 1991
* Optional Form 275 (Medical Record Report), dated 14 January 1992
* DA Form 3647 (Inpatient Treatment Record Cover Sheet), dated             14 January 1992
* Standard Form 93 (Report of Medical History) (Reverse Side), dated      12 March 1992
* numerous pages of progress notes from the Department of Veterans Affairs (VA) VISTA Electronic Medical Documentation system, printed on  1 May 2012
* 3 pages of progress notes from the VA that document an examination he underwent on 18 May 2012
* a letter from the applicant (2 pages in length)
* a letter from the applicant's mother (2 pages in length)
* an unsigned letter from an unknown individual, of an unknown relation to the applicant

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 April 1990.  He completed training and was awarded military occupational specialty 19K (M-1 Armor Crewman).  At the completion of his initial entry training, he was assigned to Company A, 4th Battalion, 64th Armor Regiment, 2nd Brigade, 24th Infantry Division (Mechanized), Fort Stewart, GA.

2.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Saudi Arabia, in support of Operations Desert Shield/Storm, from on or about 27 August 1990 to on or about 24 March 1991.

3.  On 19 September 1991, he received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for falsifying an official statement with intent to deceive, on or about 6 June 1991, and for wrongfully carrying a concealed weapon, on or about 6 June 1991.

4.  On 10 December 1991, his immediate commander initiated a bar to reenlistment against him.  On 17 December 1991, his battalion commander approved his bar to reenlistment.

5.  On 14 January 1992, the applicant sustained a gunshot wound to his head after he attempted to retrieve, by armed force, 2 firearms from the possession of 2 fellow Soldiers.  Those Soldiers later drove him to a deserted location, where they intended to kill him, and shot him in the buttocks as he escaped.  After reaching the safety of a nearby convenience store, medical attention was summoned and he was transported to Winn Army Community Hospital, Fort Stewart, GA, for medical treatment. 

6.  On 10 April 1992, he underwent a medical evaluation board (MEB) at Dwight D. Eisenhower Army Medical Center, Fort Gordon, GA.  This board recommended his referral to a physical evaluation board (PEB).  On 14 April 1992, the surgery department chief approved the MEB results.

7.  On 29 May 1992, his immediate commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of serious offenses.  As reasons for his proposed action, the commander cited aggravated assault, carnal knowledge, and possession of a firearm during the commission of a felony.  His commander recommended he receive an under other than honorable conditions discharge.

8.  On 29 May 1992, the applicant acknowledged receipt of the notification memorandum.  He consulted with counsel and was advised of the basis for the contemplated separation action for misconduct, the possible effects of this discharge, and of the procedures/rights available to him.  He requested personal appearance before and consideration of his case by a board of officers.  He indicated he would submit a statement in his own behalf, but no statement is available.

9.  On 8 June 1992, his immediate commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, paragraph  14-12(c), for misconduct – commission of serious offenses.  His commander recommended he receive an under other than honorable conditions discharge. His battalion and brigade commanders recommended approval of his immediate commander's recommendation.

10.  On 8 July 1992, the 24th Infantry Division's commander, Major General (MG) Bxxxxxxxx, ordered the convening of an administrative separation board to consider the applicant's fitness for continued military service.  He further ordered the suspension of the applicant's referral to a PEB pending the final disposition of his case before an administrative separation board.

11.  On 31 July 1992, the applicant appeared before an administrative separation board at Fort Stewart, GA.  The board considered the evidence before it and found:

* the allegations in the notice of separation were supported by a preponderance of the evidence and warranted separation
* [applicant] was not desirable for further retention in the service of the U.S. Army
* the applicant's rehabilitation is not deemed possible

In view of the findings, the board recommended the applicant's separation from service with an under other than honorable conditions discharge.

12.  On 19 August 1992, MG Bxxxxxxxx approved the board's findings and recommendation and directed he be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for the commission of a serious offense.  He further directed the applicant receive an under other than honorable conditions discharge.  Lastly, he declined to further refer the applicant to a PEB for disability processing.

13.  On 14 September 1992, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct – commission of a serious offense, and he received an under other than honorable conditions discharge.  He was credited with the completion of 2 years, 5 months, and 5 days of net active service during this period of enlistment.

14.  His record contains no documentation that shows he was diagnosed with PTSD during his period of active service.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  He submitted numerous medical documents that attest to his medical condition before and after his date of discharge.

   a. The documents that are dated before his date of discharge include a       4-page Medical Record Report, dated 14 January 1992, which provides a significant amount of information related to his gunshot wounds to the head and buttocks.  This document describes one of his conditions as "post-traumatic headache"; however, neither it nor any of the other pre-discharge documents include a diagnosis of PTSD in their narrative.

   b. The documents dated after his date of discharge primarily consist of VISTA Electronic Medical Documentation Progress Notes from the VA Medical Center in St. Petersburg, FL, and letters of support from members of his family.  The submitted progress notes describe PTSD as one of the conditions he currently suffers from.  

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  


   a. Paragraph 1-35 states that when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board.  The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial convening authority (GCMCA) over the member concerned.  The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing.

   b. Chapter 14 establishes the policies and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

18.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, it provides for disposition of the member according to applicable laws and policies.

   a. Paragraph 1-2c stipulates that a Soldier who is charged with an offense, or who is under investigation for an offense that could result in dismissal or punitive discharge, may not be referred for disability processing. 

   b. Paragraph 4-1 stipulates that the case of a Soldier charged with an offense, or who is under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless:

* the investigation ends without charges
* the officer exercising proper court-martial jurisdiction dismisses the charge
* the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence

   c. Paragraph 4-3 states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.  If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  A case file could be referred to a physical evaluation board if the GCMCA finds the disability is the cause or a substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions or other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was the victim of an attack while in the service and he suffers from memory loss because of his injuries.  He further contends he doesn't understand why he received an under other than honorable conditions discharge and he can't recall consulting with counsel during his discharge proceedings.

2.  The evidence of record shows the applicant committed various serious offenses, including:

* falsifying an official statement
* wrongfully carrying a concealed weapon
* aggravated assault
* possession of a firearm during the commission of a felony  

3.  Most notably, in an effort to retrieve 2 firearms being held by 2 fellow Soldiers, the applicant used armed force to enter a trailer being occupied by the fellow Soldiers.  It was during this encounter that he was shot in the head.  The act of using armed force to retrieve weapons was, in itself, a crime.  Had he not been engaging in a criminal act, he would not have been attacked (in his words) or shot in the head and buttocks.

4.  The applicant, by his contentions, wrongly attributes his discharge to this singular event, despite his NJP, bar to reenlistment, and overall substandard performance of duties.

5.  Accordingly, his chain of command initiated separation action against him for misconduct under the provisions of chapter 14 of Army Regulation 635-200.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant benefited from the advice of counsel.  The separation authority approved his discharge and he was ultimately issued an under other than honorable conditions discharge.  

6.  The applicant failed to show through the evidence submitted, or the evidence of record, that he suffered from PTSD at the time of his discharge.  He underwent an MEB examination following his treatment for gunshot wounds; however, Army regulations stipulate that the case of a Soldier charged with an offense, or who is under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing.  In the applicant's case, the separation authority referred his separation action to an Administrative Separation Board, which recommended his discharge under the provisions of Army Regulation 635-200, chapter 14.  Accordingly, with the recommendation of the Administrative Separation Board, the separation authority suspended his disability processing under the PDES and ordered his discharge from the Army.

7.  In view of the circumstances in this case, there is insufficient evidence to grant 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 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)                                         AR20110020788



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ABCMR Record of Proceedings (cont)                                         AR20120016024



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