DOCKET NUMBER:  AR20130013354 


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 his under other than honorable conditions discharge be upgraded to an honorable or a medical discharge.

2.  The applicant states:

* his discharge was given without consideration of his mental health at the time
* he was not given the chance to talk to a doctor or anyone about what was happening in his life
* he did not receive a fair decision
* he is now 66 years old and being treated for post-traumatic stress disorder (PTSD) which his doctor states comes from his Vietnam experiences
* he had 3 years of prior honorable service
* his record for the period 1966 to 1969 speaks for itself and he went from an E-1 to an E-5 in 10 months while in Vietnam
* he received three Purple Hearts for wounds received in combat, the Army Commendation Medal, and many more that came later
* he was also stationed in Korea at the Demilitarized Zone for which he received commendation ribbons
* he believes that since he risked his life for his country and fellow Americans, consideration should be given that he had PTSD at the time of his discharge
* he and his family have suffered for many years because of the injustice of his discharge
* he has not been able to get a decent job because of his discharge
* his decisions back then were made under duress of PTSD
* he has experienced alcohol problems, family problems, anger management problems, and many more due to PTSD
* he would like to die with some dignity

3.  The applicant provides self-authored statements and a statement from his Department of Veterans Affairs (VA) physician.

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 28 November 1966.  He served in Vietnam for the period 6 June 1967 through 5 June 1968 as an armor crewman.  On 20 November 1969, he was honorably discharged.

3.  On 10 March 1976, the applicant again enlisted in the Regular Army.

4.  DA Forms 4187 (Personnel Action) show:

* on 24 August 1976, the applicant's status changed from present for duty to ordinary leave
* on 8 September 1976, his status changed from ordinary leave to absent without leave (AWOL)
* on 7 October 1976, his status changed from AWOL to dropped from the rolls
* on 23 December 1976, his status changed from dropped from the rolls to attached

5.  On 30 December 1976, charges were preferred against the applicant for being AWOL from on or about 8 September 1976 until on or about 23 December 1976.

6.  On 7 January 1977, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant admitted guilt to being AWOL and acknowledged:

* he understood that if the discharge request was approved he could be discharged under other than honorable conditions 
* he understood that 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 understood he could expect to encounter substantial prejudice in civilian life

7.  In conjunction with his request for discharge, the applicant submitted statements in his own behalf attesting to his past military record during his first enlistment and awards and decorations he received.  He also stated, "This last enlistment was a mistake of my own."

8.  On 7 January 1977, the separation authority approved his request for discharge under other than honorable conditions and directed his reduction to private/E-1.

9.  On 25 January 1977, the applicant was discharged as directed.

10.  The applicant provides self-authored statements and an unsigned statement from his physician.  His physician states the applicant has been under his care since 2012 and is being treated for PTSD.  He further states it is possible the applicant was suffering from PTSD during his second enlistment.

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

12.  His service medical records are not contained in his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  The documents available in his AMHRR show no evidence that he was diagnosed with PTSD or any other mental conditions or found unfit.

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

	a.  Paragraph 1-7 of the regulation in effect at the time states, in pertinent part, that the type of discharge and character of service will be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated.

	b.  Paragraph 3-7a states 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 states 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. 

	d.  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 under other than honorable conditions discharge is normally considered appropriate.

14.  Army Regulation 635-40 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge to an honorable discharge or medical discharge was carefully considered.

2.  The applicant contends his prior honorable discharge, awards and decorations, as well as his risk of life for the country should have been a consideration at the time of his discharge.  His service was characterized based upon his conduct during the period he was serving.

3.  He also contends his discharge was due to his mental health and PTSD; however, there is no evidence he had a condition that rendered him unfit to perform the duties required of his office, grade, rank or rating.  Therefore, there is insufficient evidence on which to base granting him a medical discharge.

4.  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 being AWOL, 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.

5.  Although he provides a statement from his VA physician stating it is possible he was suffering from PTSD during his second enlistment, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by 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 a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130013354



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ABCMR Record of Proceedings (cont)                                         AR20130013354



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