BOARD DATE:  18 June 2014

		DOCKET NUMBER:  AR20130019057 


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 discharge under other than honorable conditions (UOTHC) to show he received a medical discharge.

2.  The applicant states his newly-diagnosed post-traumatic stress disorder (PTSD) accounts for his behavior at the time of his discharge.  The Army was aware that he had a medical issue with his feet, but chose to ignore it.

3.  The applicant provides a self-authored declaration and a State of California Department of Corrections and Rehabilitation Mental Health Evaluation.

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 records show he enlisted in the Regular Army on 13 July 1982.  He held military occupational specialty 13B (Cannon Crewman).

3.  On 23 November 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongful possession of marijuana.

4.  On 13 June 1984, court-martial charges were preferred against him for the wrongful possession of marijuana and the wrongful possession of cocaine.

5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive an undesirable discharge which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

6.  The separation authority approved the applicant's voluntary request for discharge on 30 August 1984 and directed issuance of a discharge UOTHC.

7.  On 7 September 1984, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 1 year, 8 months, and 4 days of active duty service with lost time from 20 June to 7 December 1983.

8.  His records show the highest rank he attained was private/E-2.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Machine Gun and Grenade Bars, and Marksman Marksmanship Qualification Badge with Rifle Bar.

9.  His service medical records are not available for review.

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

11.  The applicant provided a self-authored declaration in support of his request.

	a.  He stated he witnessed the death of his best friend who was riding in the back of a vehicle that was just in front of him during a training exercise at Fort Ord, CA.  His friend's vehicle hit a deep bump in the road and his friend fell out and was run over by the tire of an artillery cannon.  After witnessing the death of his best friend, he changed.  He began to smoke, drink alcohol, use drugs, and lost his desire to be a Soldier.

		(2)  He began to experience pain in the bottom of his feet.  A doctor told him he had flat feet and indicated he would be given a medical discharge.  As he waited for the discharge his unit sergeant searched his car and found drug paraphernalia.  His case was set for a court-martial.  He was given a choice to accept a discharge UOTHC or go to court-martial.

		(3)  He was discharged in 1984.  His foot problems got worse and his drug and alcohol addictions increased.  In 1989 during an argument, he killed a man and he is now in prison serving a life sentence.

		(4)  He has been officially diagnosed with PTSD.  He understands that there was very little understanding of PTSD in 1984, but he believes that his drug use and bizarre behavior was the result of PTSD.  Had the Army been aware he had PTSD when the drug pipe was found in his car, he would have been sent to a rehabilitation facility and he would have received his medical discharge due to the issues with his feet.

		(5)  He enlisted to go to war for this country and he cannot help it if his best friend's death affected him to the extent that he developed PTSD.  He questions whether the Army would have been so quick to kick him out for possessing a drug pipe if he had just returned from Iraq with PTSD and flat feet.

12.  The applicant provided a State of California Department of Corrections and Rehabilitation Mental Health Evaluation, dated 15 November 2012, in support of his request.  The evaluation states the applicant is serving a life sentence for first degree murder and he has been in prison for the past 23 years.  The applicant reported he started experimenting with drugs and alcohol at age 12.  He reported he started having PTSD symptoms when his friend was killed during a training exercise in 1983-1984.  He reported that he then started having problems and was discharged from the Army for drug related and rape charges.  This evaluation also shows the applicant was diagnosed with PTSD.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.

15.  Army Regulation 635-40, paragraph 3-2b, states that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be changed to a medical discharge.  He stated that his newly-diagnosed PTSD accounts for his behavior at the time of his discharge.  He stated the Army was aware that he had a medical issue with his feet, but chose to ignore it.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation.  Further, a State of California Department of Corrections and Rehabilitation Mental Health Evaluation revealed the applicant had started experimenting with drugs and alcohol at age 12.  There is insufficient evidence to show his military use of drugs and alcohol was related to PTSD and not just a continuation of his prior use.

3.  There is no available evidence showing the applicant had any medical or psychiatric condition incurred while entitled to receive basic pay that was so severe as to render him incapable of telling right from wrong, incapable of performing his duties, or medically unfit for retention on active duty.

4.  Therefore, there is insufficient evidence to change the applicant’s administrative discharge to a medical 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 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)                                         AR20130000724



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ABCMR Record of Proceedings (cont)                                         AR20130019057



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