IN THE CASE OF:  	  

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20140020028 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states he was diagnosed with a mental illness after his discharge.  He never received treatment for this illness while on active duty.  While he was waiting for discharge orders he was told he would be honorably discharged if he wanted it.  He was never able to obtain gainful employment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 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 insufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Regular Army on 14 May 1979.  He held military occupational specialty 11B (infantryman).  He was advanced to pay grade E-2 on 30 November 1979. 

3.  On 14 May 1980, he was convicted by a special court-martial of one specification each of being disrespectful in language and demeanor towards his superior commissioned officer; willfully disobeying lawful orders from his superior commissioned officer and noncommissioned officer; and assaulting his superior commissioned officer and a Soldier, a person then having and in the execution of Military Police (MP) duties.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay per month for 6 months, and confinement at hard labor for 5 months.

4.  On 26 June 1980, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to obey a lawful order issued by an MP on duty and being drunk and disorderly in quarters.  His punishment included a forfeiture of $50.00 pay for 1 month and 14 days of restriction.

5.  On 16 July 1980, the convening authority approved his sentence and ordered it executed.

6.  He was reported absent without leave on 16 August 1980.

7.  A DA Form 4187 (Personnel Action), dated 19 August 1980, shows he was confined by civilian authorities for a strong-arm robbery which occurred on 16 August 1980.

8.  On 25 August 1980, he was released from civilian confinement and was transferred to military confinement.  He was released on 4 December 1980.

9.  His record is void of the complete facts and circumstances surrounding his discharge; however, his record contains a DD Form 214 which shows he was discharged in pay grade E-1 on 23 December 1980 under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), paragraph 14-33b(1).  He was credited with completing 1 year and 26 days of net active service and time lost from 8 February through 8 March 1980, 14 April through 5 June 1980, and 16 August through 4 December 1980.

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

11.  On 19 August 1988, in response to his request for an upgrade of his UOTHC discharge to an honorable discharge the ABCMR denied his request.  He stated in his application that his trouble with civil and military authorities was alcohol-related while on duty and 2 years after his discharge he was diagnosed with paranoid schizophrenia and had received treatment on a continual basis since for the condition.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-33b(1) – members are subject to separation a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  Intermediate commanders could disapprove the separation recommendation and direct reassignment of the member to another organization or direct disposition by other means or approve the commanding officer's recommendation and send the report to the separation authority.  An UOTHC discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Board for Correction of Military/Naval Records to carefully considered the revised post-traumatic stress disorders (PTSD) criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.  In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed.  Quite often, however, the records of service members who served before PTSD was recognized, including those who served in the Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records.  Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct that caused the UOTHC characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances surrounding his discharge; however, upon initiation of separation action under paragraph 14-33b, the individual is afforded counsel and advised of their rights with the option to elect to submit a statement in their own behalf.

2.  Under current policy, the correction boards will carefully consider applications from former service members administratively discharged who have been diagnosed with PTSD or a PTSD-related condition by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.  There must be evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the UOTHC characterization of service.

3.  There is no available evidence and he provided none showing he was diagnosed with a PTSD-related condition prior to, during, or after his period of active duty or this condition prevented his satisfactory completion of his term of enlistment.  In his previous application he stated that his trouble with civil and military authorities was alcohol-related while on duty.

4.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his UOTHC discharge to a general discharge.  The evidence shows his civil and military offenses during his period of service diminished the quality of his service below that meriting a general discharge.

5.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for 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)                                         AR20140020028





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ABCMR Record of Proceedings (cont)                                         AR20140020028



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