IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140004293 


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, in effect, his general under honorable conditions discharge be changed to a medical discharge in order to receive benefits.  

2.  He states:

	a.  he applied for disability sometime in 2007 because he experienced trauma while in the military.  He explained that he was being racially harassed by a white man who was not his staff sergeant.

	b.  he explained that in 1978 a white man (Soldier) came up to him and screamed and hollered at him as though he was a child.  The Soldier did not write him up but continued to harass him.  He repeatedly received Article 15s and other forms of disciplinary action for failure to obey a lawful order.  His DD Form 214 (Report of Separation from Active Duty) shows the code for a hardship discharge.  One of his Article 15s had him locked up in the stockade for failure to obey a lawful order.  He also received 15 days for that incident for failing to fold linen.  

	c.  he experienced sexual trauma while in the stockade and the Government lacked concern regarding this incident.  He is experiencing ongoing effects of this trauma, and the stress has caused him heart failure.  

	d.  an examiner claimed that he was placed in the stockade because he hit a female in the face and not because of repeated receipt of Article 15s from "tops" [First Sergeant].  At all times, he was denied medical benefits.  
	e.  his documents on file stress that a doctor's order shows he was diagnosed with post-traumatic stress disorder (PTSD) and linked to the service, which was evidence to them to grant benefits.  In August, the Department of Veterans Affairs (VA) looked for new evidence to show he has PTSD.  He submitted his claim report showing he has PTSD.  Once he submitted his documents on 19 November 2013, he set out to be diagnosed by a mental health physician.  This mental health physician told him he qualified for PTSD [disability rating].  

   f.  he was then sent to another office to be examined by a social worker who tried to claim that elements were missing.  After he provided all the elements, the social worker agreed that he had PTSD.  He was then placed in a six-week orientation for PTSD.  The social worker claimed that his trauma was linked to him being in the stockade.  
   
   g.  he was later assigned to a female who specialized in sexual trauma and he first met with her on 14 February 2013.  She alleged the doctors had lied and he was never diagnosed with PTSD.  They never linked him to the stockade.  This caused him to discuss his private circumstances with a stranger and obstructed him from seeking a second opinion about mental health.  The second opinion could have been his right to prevail on medical benefits.  The hearing examiner sent him mail fraud and a copy of the Article 15 that dealt with his 15 days in jail for failure to obey an order.  Also, an Article 15 that shows he committed an assault, but this Article 15 shows he received 30 days restriction, a forfeiture of $100 for one month, and extra duty.  There was no mention of a restraining order and this copy of the Article 15 shows the signatures of him and the Army personnel, which was badly faded.  The rest of the Article 15s in the stack shows the signature clearly and visibly.  He attested this Article 15 is fake.  He was never accused of any assault during his military service.  The person he had trouble with was the top (i.e., the First Sergeant).  
   
   h.  he enlisted in the Army National Guard (ARNG) in Omaha, NE.  The recruiter had him certify that he had no criminal history before he was allowed to enter the ARNG.  He was told he had no criminal history.  He verified he had none attached to his supportive documents from the Federal Bureau of Investigation, the sheriff, and the police who all stated he had no record.  The examiners' and mental health physician fraud were used to deny him benefits.  This deception is preventing him from receiving benefits which are entitled to all veterans who experienced trauma while in the service regardless of war.  
   
	i.  he knows the reason for denial of his benefits and he explained why he believes he was denied benefits.  Based on his allegations and under the new sexual trauma military law, he is entitled to receive benefits.  

	j.  all of his Article 15s were altered on the dates.  A person by the name of 
T----- or something was the original person who altered the documents.  T----- had a document dated 2007 in which she mentions her stockade allegation at the top of the page.  She claimed she discovered four Article 15s during her investigation, three from 25 July and one from September.  The commanding officer acknowledged three Article 15s based on the reason for the applicant's discharge.  He alleged that he was found guilty of three Article 15s and he was found not guilty of the other offense on 16 July.  The 2007 document didn't mention anything about the 26 July [1978] Article 15.  

	k.  he also believes that his DD Form 214 has been altered.  His discharge code was for hardship discharge.  If this code of "501" is not hardship then they altered his DD Form 214.  

3.  He provides:

* Three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 14 February 1978 (duplicate) and 5 October 1978
* Letter, dated 29 January 2014, from the VA
* VA Form 21-4138 (Statement in Support of Claim)

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 March 1977.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, UCMJ on 14 February, 3 March, and 5 October 1978, for the following offenses:

   a.  being derelict in the performance of his duties in that he negligently failed to prepare for a scheduled inspection; 
   
   b.  failing to obey a lawful order issued by a specialist five (SP5) (16 and 27 February 1978);
   
   c.  wrongfully using provoking words toward a SP5; and
   
   d.  participating in a breach of the peace by wrongfully engaging in an argument with a male private first class and a female private (PVT) and by pushing and striking the PVT about the face and by using profane and indecent language toward the PVT.

4.  On 14 August 1978, he was convicted by a special court-martial of disobeying a lawful order from his superior noncommissioned officer on 25 July 1978, behaving himself with disrespect toward his superior commissioned officer on 26 July 1978, and disobeying a lawful command from his superior commissioned officer on 26 July 1978.  He was sentenced to confinement at hard labor for 15 days.  

5.  On 23 October 1978, the applicant's unit commander notified him of his proposed discharge action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31, Expeditious Discharge Program (EDP).  The unit commander's reasons for his proposed action were:

	a.  since the applicant's assignment to his unit, he repeatedly violated the UCMJ and had received three separate Article 15s and one summary court-martial.

	b.  the applicant had been counseled on many occasions by members of his chain of command.  However, he continued to display a totally negative attitude toward the military.

	c.  the applicant had proven his inability to adapt to military life.  Although he had been given more than adequate opportunities to adjust, he displayed no interest in becoming a productive Soldier.  

6.  The unit commander advised the applicant of his rights.  He acknowledged notification of the separation action, he didn't consult with legal counsel, he didn't submit statements in his own behalf, and he voluntarily consented to the discharge.  

7.  The separation authority approved separation action under the provisions of Army Regulation 635-200, paragraph 5-31 with the issuance of a general discharge.  

8.  On 30 October 1978, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, EDP due to failure to maintain acceptable standards for retention.  He completed 1 year, 6 months, and 23 days of active military service with 11 days of lost time.  

9.  His DD Form 214 shows he was given a separation program designator (SPD) code of "JGH" (EDP – failure to maintain acceptable standards for retention).  Item 9a (Type of Discharge) of his DD Form 214 shows the format code of "501" indicating the type of separation as "Discharge."  His service record is void of evidence which indicates he was applied for a hardship discharge.  

10.  He enlisted in the Nebraska ARNG on 23 December 1981 and was discharged on 27 September 1983 with service characterized as general under honorable conditions.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group.  Orders published on 18 December 1985 show he was discharged from the USAR on 22 December 1985.

11.  In a 29 January 2014 letter, the VA informed the applicant that a copy of his complete C-File including his Service Treatment Records were furnished based on his request.  His service record is void of and he did not provide any medical documentation.  

12.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-31 of this regulation, in effect at the time, governed the EDP.  This program provided that members who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they failed to respond to counseling:
* Poor attitude
* Lack of motivation
* Lack of self-discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion potential

Under this regulation, a general or an honorable discharge was authorized, as appropriate.  

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code "JGH" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of the EDP (failure to maintain acceptable standards for retention).  

16.  Army Regulation 635-5 (Separation Document) in effect at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation directs that the applicable term applied to each type of separation will be entered in item 9a of the DD Form 214.  Format code "501" is the appropriate code for discharge.  

17.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-31 was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

2.  It appears the applicant submitted a claim for disability compensation to the VA sometime in 2007 because he experienced trauma while in the military.  However, his service record is void of evidence that indicates he had any medically unfitting disability at the time he was discharged from the Army which required physical disability processing.  

3.  His contention that he experienced sexual trauma while in the stockade is acknowledged.  However, his service record is void of evidence to support his claim.

4.  His service record is void of evidence and he did not provide any evidence that indicates he had any medically unfitting disability at the time he was discharged which required physical disability processing.  

5.  His service record is void of evidence and he has not provided any evidence that demonstrates he was racially harassed.  

6.  His service record shows he received three Article 15s on 14 February, 3 March, and 5 October 1978 for the following offenses:

   a.  being derelict in the performance of his duties in that he negligently failed to prepare for a scheduled inspection; 
   
   b.  failing to obey a lawful order issued by a SP5;
   
   c.  wrongfully using provoking words toward a SP5; and
   
   d.  participating in a breach of the peace by wrongfully engaging in an argument with a male private first class and a female PVT and by pushing and striking the PVT about the face and by using profane and indecent language toward the PVT.

7.  Although he contends that his Article 15s and DD Form 214 were altered, there is no evidence to support his claim.  

8.  His service record does not indicate he received a fourth Article 15 in July 1978.  However, he was convicted by a summary court-martial for disobeying a lawful order, behaving himself with disrespect toward his superior commissioned officer, and disobeying a lawful command from his superior commissioned officer.  He was sentenced to confinement at hard labor for 15 days.

9.  The fact that the applicant is currently experiencing ongoing affects of the sexual trauma and the stress has caused him heart failure is unfortunate.  However, there are no provisions in Army regulations that allow the change of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

10.  His service record is void of medical documentation which indicates he was diagnosed with PTSD or any other mental condition while on active duty.

11.  He contends his DD Form 214 shows the code for a hardship discharge.  However, the code of "501" annotated on his DD Form 214 indicates the type of separation he received as "Discharge."  His service record does not include any evidence that he was approved for a hardship discharge.  

12.  He did not have any medically unfitting disability which required physical disability processing.  

13.  His request for benefits is acknowledged.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.

14.  He has not presented sufficient evidence to show his discharge under Army Regulation 635-200, paragraph 5-31 was in error or unjust or that his discharge should be changed 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 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)                                         AR20140004293





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ABCMR Record of Proceedings (cont)                                         AR20140004293



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