IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130006841 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he received a medical or honorable discharge.

2.  The applicant states:

   a.  He suffers from post-traumatic stress disorder (PTSD) and is categorized as being 100 percent (%) service-connected disabled by the Department of Veterans Affairs (VA).  He believes his in-service medical complications were not considered and he was not given his due process rights or representation at discharge.

   b.  He was injured in Wiesbaden, Germany, and was given 45 days of convalescent leave.  While stateside, he contacted a Member of Congress (MOC) and requested a compassionate reassignment which was subsequently disapproved by the Army.  He feared for his life in Germany, so he reported to Fort Ord, CA, and received an under other than honorable conditions discharge instead of a medical discharge which had been requested by a physician and a MOC.  After 15 years, he was recognized as having PTSD which the Army failed to identify, address, and process for a medical discharge.

3.  The applicant provides:

* a self-authored statement
* DD Form 214
* two DA Forms 4187 (Personnel Action)
* DA Form 2496 (Disposition Form)
* DD Form 458 (Charge Sheet)
* DA Form 3975 (Military Police Report)
* DA Form 3355 (Promotion Point Worksheet)
* Standard Form (SF) 502 (Narrative Summary (Clinical Résumé))
* SF 509 (Progress Notes)
* AF 560 (Authorization and Treatment Statement)
* AF 565 (Record of Inpatient Treatment)
* five Certificates
* three Diplomas
* VA letter
* Congressional Correspondence
* six letters
* I-797C (Notice of Action)
* N-426 (Request for Certification of Military or Naval Service)
* additional miscellaneous forms

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's complete record is not available for the Board to review; however, there is sufficient evidence to consider his request based on a partial records reconstruction that the applicant provides.   

3.  The applicant enlisted in the Regular Army on 6 April 1977.  He completed training and was awarded military occupational specialty 11B (Infantryman).

4.  Permanent Orders 23-33, issued by U.S. Army Regional Personnel Center, Wiesbaden, dated 5 April 1983, awarded him the Army Good Conduct Medal (2nd Award) for the period 6 April 1980 through 5 April 1983.
5.  The applicant provides evidence which shows he sustained a stab wound to his right chest on or about 0330 hours on 8 September 1984, at the Fred Astaire Disco.  He was admitted to the U.S. Air Force Medical Center, Wiesbaden, Germany for observation and treatment.  On 19 September 1984, he was discharged in stable condition.

6.  Evidence shows the applicant was granted 17 days convalescent leave commencing on 10 October 1984.  He was required to report no later than     1500 hours on 27 October 1984 to see his physician.

7.  The applicant provides a copy of a DA Form 3975, dated 21 January 1985, which shows the applicant surrendered to authorities at Fort Ord, CA for being absent without leave (AWOL).

8.  On 19 December 1984, charges were preferred against the applicant for being AWOL for the period 28 October 1984 through 21 January 1985 and for wrongfully using marijuana in the hashish form prior to the submission of a urine sample during a selected unit urinalysis on 9 August 1984.

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, the applicant provides a copy of a DA Form 2496, subject, "Request for Discharge for the Good of the Service Under the Provisions of Chapter 10 Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)."  The form states the applicant consulted with an attorney and understood the consequences of the request.  His pattern of behavior indicated that retention was neither practical nor desirable.  The applicant had no potential for rehabilitation.  The form is signed by his commander, intermediate commander, and separation authority who all recommended an under other than honorable conditions discharge.  

10.  On 8 April 1985, the applicant was discharged accordingly.  His DD Form 214 shows he completed 7 years, 9 months, and 9 days of creditable active service with lost time for the period 29 October 1984 through 20 January 1985.

11.  His record is void of any evidence and he has not provided sufficient evidence that shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

12.  The applicant provides a letter from the VA, dated 10 March 2011, that shows his combined service-connected disability evaluation was 100% on 1 February 2010.  However, the letter does not specify what service-connected disabilities he is being compensated for.
13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  The applicant provides letters of post-service conduct with his request.  These individuals attest to his good character and employability.

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

	a.  Chapter 10 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.

	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.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that the mere presence of 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.
17.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge under other than honorable conditions to an honorable or medical discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation        635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant would have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  In the absence of evidence to the contrary 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.

3.  Notwithstanding the statement and supporting documents provided by the applicant, post-service conduct alone is not a basis for upgrading a discharge.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either an honorable or a general discharge.

4.  With respect to a medical discharge, there is no evidence in his records which indicates he was physically or mentally unfit at the time of his discharge.  A Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating.  In the applicant's case, it is presumed he underwent a separation physical and possibly a mental status evaluation prior to his discharge.  The doctor/physician would have had to find him medically qualified and/or psychiatrically cleared for separation.  

5.  The medical documents that were provided by the applicant are incomplete and focus primarily on his stab wound; however, they do not show he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

6.  He may believe since the VA awarded him a 100% service-connected disability rating (presumably for PTSD) the Army should do the same.  However, it is possible that he has developed PTSD since discharge or his condition existed at the time but was not severe enough to render him unable to perform the duties required of his grade and military specialty.  Regardless, the Army's disability process is dependent on the existence and severity of the applicant's condition at the time of his discharge action.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by awarding, denying, or adjusting a disability rating.

7.  An award of a rating by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

8.  The applicant failed to show through the evidence submitted and the evidence of record that he was medically/physically unfit at the time of discharge and that he should have been processed for separation due to physical disability.  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)                                         AR20130006841





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ABCMR Record of Proceedings (cont)                                         AR20130006841



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