IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140007911 


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 issuance of a 20-Year Letter (Notification of Eligibility of Retired Pay at Age 60) and placement on the Retired List.

2.  The applicant states:

   a.  He was not allowed to retire at the time of his discharge and he was not coherent enough to make a rational decision.  He believes the record to be in error or unjust for the following reasons:

* As a result of his disease and not knowing what was wrong with his mental behavior and thought process, he started self-medicating himself and was forced to resign his commission in lieu of a court-martial instead of retiring
* He has been diagnosed with post-traumatic stress disorder (PTSD) and he is receiving ongoing proper treatment from a Department of Veterans Affairs (VA) hospital and the VA Veterans Center of PTSD for Iraqi veterans

   b.  He remains clean from all illegal drugs.  He is currently a volunteer at the VA Medical Center in the hospice ward (1 year).  He is currently enrolled in the Master's program for Environmental Science at the University of Michigan-Dearborn.  His original discharge was upgraded by the Army Discharge Review Board (ADRB) to an honorable discharge (i.e., general discharge).  

   c.  He has exhausted all administrative remedies with applying to the Department of the Army and Army Review Boards Agency (ARBA).  The U.S. Army Human Resources Command (HRC) was unable to assist him in transferring to the Retired List or issue him a 20-Year Letter.  He was denied and he was instructed to apply to the Army Board for Correction of Military Records (ABCMR).

   d.  He believes that if he had been diagnosed with PTSD by the Army prior to his resignation in lieu of court-martial and not solely with his disease of substance abuse, he would have made a more rational decision regarding his conduct and retirement options.  Now that he has been diagnosed with PTSD and receiving ongoing treatment, he remains clean from all illegal drugs. 

3.  The applicant provides copies of the following:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 29 October 1989 and 3 December 2003 (general discharge)
* two letters from ARBA
* two letters to the Vet Center
* Chronological Statement of Retirement Points
* VA Rating Decision
* certified mail receipt from submission to HRC
* letter from HRC and Information Paper
* VA and University of Michigan-Dearborn identification cards
* birth certificate
* two direct deposit forms

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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he enlisted in the Regular Army (RA) on 24 November 1979.  He served continuously on active duty through several reenlistments until he was honorably discharged on 29 October 1989.  He was transferred to a reserve unit.  He was credited with completing 9 years, 11 months, and 15 days of active service.  

3.  He enlisted in the Alabama Army National Guard (ALARNG) on 30 October 1989.  He was honorably discharged from the ALARNG on 22 July 1993.  He was credited with completing 3 years, 8 months, and 23 days of net service.  

4.  A Standard Form 88 (Report of Medical Examination), dated 6 October 1992, shows he was found medically qualified for appointment in the Combat Arms, Airborne, Ranger, and Special Forces branches.  

5.  He was commissioned in the RA, as a second lieutenant, on 23 July 1993.  He held the Area of Concentration of Chemical Munitions and Material Management.  He was promoted to captain on 1 August 1997.

6.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 13 June 2003, which shows a FLAG was initiated against him for adverse action.

   b.  A Transmittal of Court-Martial Charges memorandum, dated 4 September 2003, wherein the applicant's company commander forwarded court-martial charges that had been preferred against the applicant to the battalion commander.  The company commander stated he was recommending the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.

   c.  A Resignation in Lieu of Trial by General Court-Martial memorandum, dated 12 September 2003, wherein the separation authority recommended approval of the applicant's resignation and the applicant's separation with an under other than honorable conditions (UOTHC) discharge.  

   d.  A Resignation for the Good of the Service memorandum, dated 13 November 2003, wherein HRC approved the applicant’s resignation under the provisions of Army Regulation 600-8-24 (Officer Discharges), chapter 3, paragraph 3-13, no later than 14 days after the applicant was notified of that action.

7.  He was discharged accordingly on 3 December 2003 in lieu of trial by court-martial.  He was credited with completing 24 years and 18 days of active service and time lost from 1 to 2 April 2003.  His service was characterized as UOTHC.
8.  On 16 May 2008, in response to his request for an upgrade of his discharge, the ADRB determined the characterization of service was too harsh based on his overall length and quality of service, to include his combat service.  The ADRB granted partial relief by upgrading his characterization of service to general, under honorable conditions.  The ADRB further determined that the reason for his discharge was both proper and equitable and voted not to change it. 

9.  On 26 June 2008, he was provided a new DD Form 214 showing his discharge had been changed to a general, under honorable conditions.  

10.  On 11 March 2009, HRC advised ARBA that the applicant would not be entitled to a 20-Year Letter because he was Regular Army, not Reserve.

11.  On 16 March 2009, in response to his request for correction of his military records, ARBA advised him that an officer who resigned for the good of the service regardless of the character of service received was barred from rights under laws administered by the VA based on the period of service from which the officer resigned.  In addition, an upgrade by the ADRB of his characterization of service from UOTHC to general did not qualify him for retirement status.

12.  On 23 September 2010, the ABCMR denied his request for a change to show a reason for separation other than "in lieu of trial by court-martial" on the basis that he had not provided any evidence showing he did not request separation in lieu of court-martial.

13.  On 9 October 2013, in response to his request for a 20-Year Letter and placement on the retirement list, the ADRB advised him that he had not exhausted his administrative remedies and he must submit his request to HRC for review and appropriate action.

14.  He provided copies of the following:

   a.  Two letters to the Vet Center which reference his diagnosis of PTSD and enrollment in the Readjustment Counseling Service since 9 August 2010 for treatment.

   b.  A Chronological Statement of Retirement Points, dated 21 May 2013, which shows he was credited with 24 years of qualifying service for retired pay as of 2 December 2003.

   c.  A VA Rating Decision, dated 23 January 2014, which shows he was awarded a 50 percent service-connected disability rating for PTSD from 3 October 2013.
   d.  A letter, dated 9 April 2014, wherein he requested from HRC the issuance of a 20-Year Letter and placement on the retired list.  

   e.  An Information Paper, dated 16 April 2014, wherein HRC advised him that his personnel file indicated that he was discharged.  That agency was unable to assist him in transferring to the retirement list or issue a 20-Year Letter.  He could submit an application to the ABCMR.

15.  He will reach 60 years of age on XX November 2020.

16.  Army Regulation 600-8-24 sets the discharge function for all officers on active duty for 30 days or more.  The regulation states in:

   a.  Paragraph 3-13 - An officer may submit a resignation for the good of the service in lieu of a general court-martial when court-martial charges have been preferred against the officer with a view toward trial by a general court-martial.

   b.  Paragraph 6-1 - Applies to nondisability retirement of active duty list commissioned and warrant officers on active duty to include Active Guard Reserve commissioned officers who have 20 years or more of active Federal service (AFS).

   c.  Paragraph 6-1g - All retirements, except for disability separations, involving commissioned and warrant officers who, since their last promotion, have been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding or inquiry (except minor traffic infractions) will be forwarded to Assistant Secretary of the Army (Manpower & Reserve Affairs) (ASA (M&RA)) in accordance with Army Regulation 15-80 (Army Discharge Review Board), for a grade determination.  

   d.  Paragraph 6-13c – An RA or U.S. Army Reserve (USAR) commissioned officer with 20 years of AFS (of which 10 years is active commissioned service) may on their request and the approval of Secretary of the Army be retired (Title 10, U.S. Code (USC), section 3911).  An RA commissioned officer with 30 years of service may upon their request and the approval of the Secretary of the Army be retired (Title 10, USC, section 3918). 

17.  Army Regulation 135-180 (ARNG and USAR Qualifying Service for Retired pay Nonregular Service), states in order to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and 93) served the last 8 years of his/her qualifying service as a Reserve Components (RC) Soldier.  The requirement to serve the last 8 years in a RC status has since been amended to the last 6 years and currently 0 years.

18.  Army Regulation 135-180, paragraph 2-3, states a 20-Year letter will be issued to RC Soldiers within 1 year after they complete 20 years of qualifying service for retirement.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the issuance of a 20-Year letter:

   a.  The applicant's record is void of the complete facts and circumstances surrounding his discharge; however, the available evidence shows he served in the RA in an enlisted and commissioned officer status.  On 4 September 2003, court-martial charges were preferred against him.  On 13 November 2003, HRC approved his resignation in lieu of a general court-martial and he was discharged accordingly on 3 December 2003.  

   b.  Since he was RA and not RC, he was not entitled to a 20-Year Letter within 1 year after he completed 20 years of service (approximate around 1998) or at this time.  Therefore, he is not entitled to the requested relief.

2.  With regard to his placement on the Retired List:

   a.  He was credited with completing 24 years and 18 days of AFS as of 3 December 2003; however, there is no evidence he submitted a request for a retirement upon completion of 20 years of AFS which was approximately 4 years prior to his resignation.  

   b.  There is also no evidence and he provided none to show he was erroneously or unjustly prevented from requesting retirement at his completion of 20 years of AFS or prior to his discharge.  He was discharged from the RA by his own volition by reason of resignation based on his misconduct.  

   c.  There is no indication he suffered a disabling condition while in a qualifying active duty status and he did not provide sufficient evidence to show he was unjustly or erroneously denied consideration of a disabling condition at the time of his discharge in 2003.  Any treatment he is receiving from the VA for PTSD does not establish entitlement to a retirement from the Army.

   d.  In addition, an upgrade by the ADRB of his characterization of service from UOTHC to general did not qualify him for retirement status.

   e.  Therefore, there is insufficient evidence to support granting him the 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)                                         AR20140007911





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ABCMR Record of Proceedings (cont)                                         AR20140007911



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