IN THE CASE OF:	  

		BOARD DATE:	    5 November 2013

		DOCKET NUMBER:  AR20130004400 


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, correction of his discharge under other than honorable conditions to show he was retired by reason of physical disability.

2.  The applicant states he suffered from post-traumatic stress disorder (PTSD) and paranoia all of his life and should have been medically retired with a 
100-percent disability rating instead of being discharged under other than honorable conditions.

3.  The applicant provides copies of his birth certificate, his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored letter addressing his application, a letter from the Superior Court of New Jersey, medical documents showing his medical diagnosis, and a letter from the Social Security Administration.

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 in Newark, New Jersey, on 16 January 1986 for a period of 3 years, training as a food service specialist, and assignment to Fort Ord, California.  He completed basic training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Lee, Virginia, before being transferred to Fort Ord for his first and only assignment on 27 June 1986.

3.  His records, though somewhat incomplete, show orders were published on 21 January 1987 directing his trial by special court-martial.  The records are silent as to the charges; however, they show he was confined by military authorities for 36 days during the period 12 February-19 March 1987.

4.  The facts and circumstances surrounding his discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Montgomery, Alabama, in 1995.  However, his records do contain a duly-authenticated DD Form 214 which shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 26 March 1987 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 1 year, 1 month, and 5 days of active service.

5.  The medical documents submitted by the applicant indicate that he suffered from chronic paranoid schizophrenia and PTSD well before entering military service.

6.  There is no evidence in the available records to show he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  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, an undesirable discharge was considered appropriate at the time.

	b.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  Disability compensation is not awarded for conditions that existed prior to service.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the absence of evidence to show his condition was service-connected and prevented him from performing his duties.  There does not appear to be any evidence showing he did not meet medical retention standards and had a condition warranting a medical evaluation board/physical evaluation board or entry into the Physical Disability Evaluation System.  The ABCMR is not an investigative body and the burden of providing proof/evidence of one's claims rests with the applicant.

4.  There is no evidence to show he was not properly diagnosed at the time or that his discharge was not conducted in accordance with the applicable laws and regulations then in effect.

5.  Accordingly, there appears to be no basis for correcting the applicant's discharge to show he was retired by reason of permanent physical disability.

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 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)                                         AR20130004400



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ABCMR Record of Proceedings (cont)                                         AR20130004400



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