IN THE CASE OF:	   

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130017609 


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 upgrade of his general discharge to honorable and, in effect, a change of the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 15 February 1983.

2.  The applicant states he repeatedly requested treatment and counseling and he was denied on every occasion and punished.  He received a service-connected rating from the Department of Veterans Affairs (VA) due to conditions that went untreated during service, severe physical, mental and emotional distress. 

3.  The applicant provides:

* VA Rating Decision dated 23 August 2010
* a Psychiatric Report from Jesse Brown VA Medical Center (VAMC)
* VA Rating Decision dated 14 February 2011 

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.  On 12 November 1981, he enlisted in the Regular Army for 3 years.  

3.  On 5 February 1982, while assigned to Company A, 4th Battalion, 1st Training Brigade, Fort Knox, KY, he accepted nonjudicial punishment (NJP) for stealing a cassette tape recorder, of a value of about $30.50, the property of another private.

4.  On 26 March 1982, he was assigned to Company B, 1st Battalion, 67th Armor at Fort Hood, TX.  On 11 October 1982, he accepted NJP for failing to go at the time prescribed to his appointed place of duty.

5.  DA Forms 4856 (General Counseling Form) show he was formally counseled on:

* 1 October 1982 for failing to show up on time for battalion payday muster formation on 30 September 1982
* 14 October for sleeping in the turret of a tank during working hours

6.  On 4 February 1983, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  Specific reasons for his recommendation were the applicant's:

* repeated failure to attain and maintain the standards required of a Soldier in the unit
* conduct and performance of duty that caused his platoon leadership to spend an inordinate amount of time dealing with him and his problems

7.  The commander advised the applicant of his right to: 

* consult with a consulting counsel
* submit statements in his own behalf
* be represented by counsel or to waive any of these rights
* withdraw any waiver of these rights at any time prior to the date the discharge authority directed or approved his discharge

8.  On 4 February 1983, the applicant, after having been advised by counsel, submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The applicant indicated that he was not submitting a statement in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

9.  On 4 February 1983, the applicant's commander recommended the applicant be eliminated from the U.S. Army under the provisions of Army Regulation 635-200, chapter 13 due to his unsatisfactory performance and incidents of misconduct.  The applicant failed to maintain the standards required of a Soldier.

10.  On 8 February 1983, the appropriate authority approved the applicant's discharge for unsatisfactory performance and directed the applicant be issued  General Discharge Certificate.

11.  On 15 February 1983, the applicant was discharged by reason of unsatisfactory performance.  He completed 1 year, 3 months, and 4 days of  active service that was characterized as under honorable conditions.  The narrative reason for discharge shown on his DD Form 214 is "Unsatisfactory performance."

12.  His service medical records were not available for review.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

14.  He submitted his VA Rating Decision, dated 23 August 2010. 

	a. The rating shows:

* service-connection for post-traumatic stress disorder (PTSD) with depression was granted based on his condition being directly related to his stressful experiences during military service.  
* the VA examiner concluded his currently diagnosed PTSD with depression was related to the death of his friend Private P____ and finding his body during service 
* research of military unit records confirmed the self-inflicted death of Private P____ on 20 January 1982
* he was given a disability rating of 70 percent effective 4 August 2009, the date the VA received his claim for depression
	b.  There is no mention in the decision of evidence of treatment for his condition in his service medical record.  The disability rating is based solely on his current condition and the proven event that occurred in service.

15.  He provided a Psychiatric Report from Jesse Brown VAMC that diagnosed him with PTSD with depression (not otherwise specified).

16.  He submitted his VA Rating Decision, dated 14 February 2011, that increased his disability rating for PTSD from 70 percent to 100 percent.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 13 provided for separation due to unsatisfactory performance when in the commander’s judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good 	order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, 	including potential for advancement or leadership, was unlikely

Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he requested treatment for severe mental and emotional distress while in service.  His service medical records are not available for review and he has not submitted any evidence to support this contention.  He submitted a claim for depression to the VA on 4 August 2009, over 26 years after his discharge, that resulted in a diagnosis of PTSD.  His disability rating is based solely on his 

current condition and the proven event that occurred in service.  There is no evidence he suffered from depression or PTSD while in service.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  He repeatedly failed to attain and maintain the standards required of a Soldier in his unit.  His conduct and performance of duty were such that his platoon leadership spent an inordinate amount of time dealing with him and his problems. He accepted NJP on two occasions.  He clearly had not met the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In view of the above, there is an insufficient basis upon which to upgrade his discharge or to change the reason for his 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)                                         AR20130017609



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ABCMR Record of Proceedings (cont)                                         AR20130017609



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