IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140001230 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states:

* he was under doctor's care for mental health (Post-Traumatic Stress Disorder (PTSD) and drug and alcohol therapy) prior to the disciplinary action
* he was sexually assaulted twice while on active duty
* he was incapable of movement at the time of disciplinary action
* his commanding officer failed to acknowledge his doctor's orders for which he was being treated for an injury to his leg
* his mental health records and his therapist notes and recommendations were excluded from his records
* he was diagnosed with an anxiety disorder in Korea
* he was physically assaulted by a private in basic training
* he had severe emotional issues as a result of these assaults and he self-medicated with alcohol and drugs
* since his discharge he has attended a drug and alcohol treatment program, psychotherapy sessions for anxiety and depression   

3.  The applicant indicates he provides his entire medical file; however, these records are not available.  


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 10 October 1979 for a period of 3 years.   He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  On 15 January 1982, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 5 January 1982 to 7 January 1982.

4.  His records contain a:

	a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 February1982, which states he injured his right thigh on 31 January 1982 when he ran into a garage door handle.  He sustained a cut approximately three inches in length which was extremely deep and required sutures.   

	b.  DA Form 3349 (Physical Profile Board Proceedings), dated 3 February 1982, which shows he was issued a temporary profile for a laceration of his left thigh.  His assignment limitations were no running or jumping.  The temporary profile expired on 28 February 1982. 

5.  On 18 February 1982, NJP was imposed against him for failure to go to his appointed place of duty and disobeying a lawful order.

6.  Records show he was absent without leave (AWOL) from 1 March 1982 to 
10 March 1982

7.  On 3 May 1982, a bar to reenlistment was imposed against him.


8.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 29 June 1982 in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 2 years, 8 months, and 8 days of creditable active service with 12 days of lost time.

9.  There is no evidence of record which shows he was diagnosed with PTSD or any mental condition or alcohol abuse or dependency.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was under doctor's care for PTSD and drug and alcohol therapy prior to his disciplinary action and he was diagnosed with an anxiety disorder in Korea.  However, there is no evidence of record which shows he was diagnosed with PTSD or any mental condition or alcohol abuse or dependency prior to his discharge, and he provides no evidence to show he has been diagnosed with a service-connected PTSD or other mental condition.




2.  His remaining contentions were carefully considered.  However, in the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed the authority and reason for his discharge were commensurate with his overall record of service.

3.  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)                                         AR20140001230





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ABCMR Record of Proceedings (cont)                                         AR20140001230



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