IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130003093 


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 that his under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states he was engaged in battle as a tanker and he has not been able to get over the killing and wounded on both sides.  To this day he still has post-traumatic stress disorder (PTSD) and suicidal thoughts.  The Department of Veterans Affairs (VA) will accept the upgrade for him to receive VA benefits.

3.  The applicant provides:

* 12 pages of VA Progress Notes
* 27 pages of medical documents from the Camino Real Community, Mental Health and Mental Retardation (MHMR) Center
* statement (on the reverse side of his application) from "1SG 'R' [First Sergeant (Retired)] M___ L_____"

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 20 May 1987 and successfully completed training.  He was awarded military occupational specialty 19K (M1 Armor Crewman).  

3.  The applicant was deployed in support of Operation Desert Shield/Desert Storm during the period 31 December 1990 to 2 May 1991.

4.  On 24 May 1991, the applicant was honorably discharged for immediate reenlistment on 25 May 1991.

5.  A DD Form 458 (Charge Sheet), dated 20 May 1992, shows charges were preferred against the applicant for wrongful use of marijuana and cocaine.

6.  On 28 May 1992, he consulted with legal counsel, who advised him of the basis for his pending trial by court-martial, the significance of a sentence to a punitive discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.

7.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that he understood he could be discharged under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he was guilty of the charge against him or a lesser included offense contained therein.  He elected not to make a statement in his own behalf.

8.  On 3 June 1992, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the applicant be reduced to the lowest enlisted grade and given an under other than honorable conditions discharge.

9.  On 28 July 1992, the applicant was discharged under other than honorable conditions.  He completed 5 years, 2 months, and 9 days of total active service.

10.  The applicant's medical records are not available for review.

11.  He provides medical records showing, on 20 July 2011, he was admitted to the South Texas Veterans Health Care System for treatment of suicidal ideation, depression symptoms, decreased sleep, and anxiety as evidenced by PTSD symptoms.

12.  He provides a statement from 1SG (Retired) M___ L_____ who states the applicant is going to counseling and seeking support for PTSD and has shown improvement.  He states the applicant regrets what he did in service.  The "Middle East tore him up." 

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has been diagnosed with PTSD and his discharge should be upgraded so that he can get VA benefits.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for VA medical benefits.  Every case is individually decided based upon merits when an applicant requests a change in his/her discharge. 

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with the wrongful use of marijuana and cocaine, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to a general 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)                                         AR20130003093





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ABCMR Record of Proceedings (cont)                                         AR20130003093



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