IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009685 


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 an upgrade of his discharge so he can receive compensation.

2.  The applicant states, in effect:

   a.  He served in Vietnam and deserves an upgrade of his discharge in addition to being compensated for his service in Vietnam.   He receives all of his medicine and medical care until he dies; however, he needs to be compensated.  After he returned from Vietnam, he went home for two weeks longer than he was told.  He was "done wrong" and was wrongfully discharged.  He was not ready to get out of the service.  He simply did not know to whom he should talk.

   b.  Upon his discharge he subsequently received medical care from a Department of Veterans Affairs (VA) hospital where he claims his medical records show he tested positive for exposure to agent orange and post-traumatic stress disorder (PTSD).  
   
3.  The applicant provides a self-authored statement.

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 30 June 1970.  He served in Vietnam from 20 March 1971 to 7 February 1972.

3.  Evidence shows the applicant was charged with being absent without leave (AWOL) for the periods 17 April through 1 May 1972; 4 May through 7 August 1972; and 7 August through 12 September 1972, at which time he surrendered to military control.

4.  On 25 September 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected to submit a statement in his own behalf; however, none was found in the applicant's records.

6.  On 27 October 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 16 November 1972, the applicant was discharged accordingly.  He completed 1 year, 11 months, and 26 days of total active service with lost time for the periods 17 through 30 April 1972, 3 May through 11 September 1972, and 6 through 13 November 1972.

7.  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.

8.  His record is void of any evidence and he has not provided sufficient evidence that shows he was ever diagnosed with or treated for exposure to agent orange or PTSD while serving in the Army.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

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

11.  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.

12.  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.

13.  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 discharge to presumably receive compensation for his service in Vietnam was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of offenses punishable under the UCMJ 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 voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  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.  It appears the applicant is seeking compensation for maladies he claims is associated with his service in Vietnam (exposure to agent orange and PTSD).  With respect to a medical discharge, there is no evidence in his records and he did not provide any evidence 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.  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.

6.  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.

7.  The applicant failed to show through 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)                                         AR20130009685





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ABCMR Record of Proceedings (cont)                                         AR20130009685



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