RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070001491 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under honorable conditions discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he participated in Operation Urgent Fury, which was an attack in October 1983 on the Communist-held Caribbean Island of Grenada.  He adds that he was a paratrooper assigned to the 82nd Airborne Division when he went into Grenada, nearly all of the Soldiers who landed on Grenada came under enemy fire, and it changed his life for the worse.  The applicant also states, in effect, that he was diagnosed twice with Post-Traumatic Stress Disorder (PTSD), including Axis I Alcohol Dependence and paranoid psychosis.  He further states, in effect, that he regrets relying on alcohol and marijuana, but it was the only way he knew how to cope with the fear he experienced.  The applicant concludes by asking the Board to upgrade his discharge from a General Discharge to an Honorable Discharge.

3.  The applicant provides a self-authored letter, dated 18 December 2006;
DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 19 November 1985; and P.T.S.D. Residential Program, Certificate of Completion, Hudson Valley Veterans Affairs Hospital, Montrose, New York, dated 28 January 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 November 1985, the date of his discharge.  The application submitted in this case is dated 20 January 2007.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military service records show that he enlisted in the U.S. Army Reserve on 10 September 1982 and entered active duty in the Regular Army (RA) for a period of 4 years on 12 November 1982.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record), Item 27 (Remarks), shows that he performed duty in an imminent danger pay area (Grenada) from 27 October 1983 to 5 November 1983.

5.  The applicant’s military service records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 27 February 1985, and Headquarters,
82nd Aviation Battalion, Fort Bragg, North Carolina, Comment 2, dated
28 February 1985, subject: Bar to Reenlistment.  The DA Form 4126-R shows that the applicant’s company commander recommended the applicant be barred from reenlistment in the U.S. Army based upon issuing 6 dishonored checks to the post exchange in 2 months.  This document also shows that he provided the applicant a copy of the recommendation and the applicant indicated he did not desire to submit a statement in his own behalf.  Comment 2 to the DA Form 4126-R shows that the battalion commander approved the Bar to Reenlistment Certificate, directed it be placed in the applicant’s military service records, and the remark “Not Recommend for further Service” be entered on his DA Form 2-1. This document also shows that the applicant was advised that he could apply for immediate discharge under the provisions of Army Regulation 635-200, Chapter 16, if he felt he would not be able to overcome the Bar to Reenlistment.

6.  There is no evidence showing the applicant applied for discharge under the provisions of Army Regulation 635-200, Chapter 16.

7.  The applicant’s military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 25 April 1985.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 1730 hours, 18 April 1985, without authority, failing to go at the time prescribed to his appointed place of duty.  This document also shows that the applicant requested a closed hearing and that matters in defense, mitigation, and/or extenuation were provided by the applicant to the commander.  Subsequent to the closed hearing and consideration of all matters presented in defense, mitigation, and/or extenuation, the commander imposed punishment against the applicant that consisted of reduction to the grade of E-3; forfeiture of $185.00 (suspended until 25 July 1985); 14 days extra duty; and 14 days restriction (suspended until 25 July 1985).

8.  The applicant’s military service records contain a DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), dated 5 June 1985.  This document shows that the suspension of the punishment of forfeiture of $185.00 (suspended until 25 July 1985), imposed on 25 April 1985, was vacated based on the applicant’s violation of a lawful command from the company commander on 27 May 1985.

9.  The applicant’s military service records contain a DA Form 2496 (Disposition Form) from the Biochemical Test Coordinator, Operation Awareness, dated
19 September 1985, subject: Results of Biochemical Testing, along with a
DA Form 5180-R (Urinalysis Custody and Report Record), dated 12 September 1985 and COMPUCHEM Laboratories, Inc, Durham, NC, message 041746Z September 1985, subject; Drug Urinalysis Report.  These documents show, in pertinent part, that the applicant was identified as having a positive urinalysis result for THC based on a unit biochemical test conducted on 23 August 1985.

10.  The applicant’s military service records contain a DA Form 2627, dated
22 October 1985.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for the wrongful use of marijuana, at some location or locations, at or near Fort Bragg, North Carolina, during the period of 13 August 1985 to 23 August 1985.  This document also shows that the applicant requested a closed hearing and that matters in defense, mitigation, and/or extenuation were provided by the applicant to the commander. Subsequent to the closed hearing and consideration of all matters presented in defense, mitigation, and/or extenuation, the commander imposed punishment against the applicant that consisted of reduction to the grade of E-1; forfeiture of $200.00 per month for 2 months; 30 days extra duty; and 30 days restriction.

11.  The applicant’s military service records contain a DA Form 3822-R (Report of Mental Status Evaluation), dated 18 October 1985, which was completed based on the applicant being considered for discharge from the Army.  This document shows that the applicant was evaluated as being fully oriented, his thinking process was clear, thought content normal, he was mentally responsible, and had the mental capacity to understand and participate in the discharge proceedings.  This document also shows that both the physician’s assistant and captain serving as the physician authenticated the report with their signatures.

12.  On 29 October 1985, the major serving as commander of Company A,
82nd Combat Aviation Battalion, 82nd Airborne Division, Fort Bragg, North Carolina, notified the applicant of his intention to initiate separation action against the applicant for misconduct under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12(c), commission of a serious offense.  The unit commander stated the basis for his action was based on the applicant’s wrongful use of marijuana and he advised the applicant that he may receive a General Discharge Certificate.
13.  On 29 October 1985, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, and of the rights available to him.  The applicant also indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

14.  The applicant submitted a statement in his own behalf that shows, in pertinent part, he denied using or abusing any drug during his 3 years of military service.

15.  On 29 October 1985, the commander of Company A, 82nd Combat Aviation Battalion, 82nd Airborne Division, Fort Bragg, North Carolina, recommended the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12(c), for commission of a serious offense.

16.  On 30 October 1985, the commander of the 82nd Combat Aviation Battalion, 82nd Airborne Division, Fort Bragg, North Carolina, approved the recommendation for the applicant’s discharge for misconduct under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12(c), based on his commission of a serious offense.  The battalion commander directed that the applicant not be transferred to the Individual Ready Reserve and also directed the applicant be issued a General Discharge Certificate.

17.  The applicant's DD Form 214 shows he was discharged on 19 November 1985 and contains the separation authority, separation code, narrative reason for separation, and character of service pertaining to the applicant's discharge.  This document confirms that the authority for the applicant’s separation was Army Regulation 635-200, Chapter 14, paragraph 14-12c, and the narrative reason for his separation was misconduct based on commission of a serious offense.  Based on the authority and reason for his separation, the applicant was assigned a Separation Program Designator (SPD) Code of JKQ.  This document also confirms that the applicant was discharged under honorable conditions.

18.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.
19.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

20.  In support of his application, the applicant provides a P.T.S.D. Residential Program Certificate of Completion from the Hudson Valley Veterans Affairs Hospital, Montrose, New York, which shows the Treatment Coordinator certified the applicant completed the P.T.S.D. Residential Program on 28 January 2005.

21.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the policy for the separation of enlisted personnel and provides, in pertinent part, when deciding retention or separation in a case, the commander will consider the Soldier's entire military record, including past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation; memoranda of reprimand or admonition, counseling records, records of non-judicial punishment, records of conviction by court-martial and records of involvement with civilian authorities; and any other matter deemed relevant by the board or the separation authority.

22.  Chapter 16 (Selected Changes in Service Obligations) of Army Regulation 635-200 establishes policy and prescribes procedures for separating personnel for various personnel management-related reasons, which includes the early separation of personnel denied reenlistment.  Enlisted personnel may be discharged before expiration term of service (ETS) by specified commanders when they have received a bar to reenlistment.  The characterization of service or description of separation for enlisted Soldiers requesting separation under this provision will be characterized as honorable.

23.  Chapter 14 (Separation for Misconduct) of Army Regulation 635-200 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

24.  Army Regulation 635-5-1 (Separation Program Designator (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 identifies the SPD Code of JKQ as the appropriate code to assign RA enlisted Soldiers who are separated under the provisions of Army Regulation 635-200, paragraph 14-12c, based upon misconduct – commission of a serious offense.

25.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

26.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under honorable conditions discharge should be upgraded to a fully honorable discharge because his reliance on alcohol and marijuana was the result of Post-Traumatic Stress Disorder, including Axis I Alcohol Dependence and paranoid psychosis, caused by fear based on his experience of being under enemy fire in Grenada.

2.  The evidence of record shows that a bar to reenlistment was imposed against the applicant on 28 February 1985 and that he was advised that he could apply for immediate discharge under the provisions of Army Regulation 635-200, Chapter 16, if he felt he would not be able to overcome the Bar to Reenlistment.  The evidence of record also shows that enlisted Soldiers requesting separation under this provision will be characterized as honorable.  However, there is no evidence showing the applicant applied for discharge under the provisions of Army Regulation 635-200, Chapter 16.

3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, was based upon his misconduct for commission of a serious offense; specifically, the wrongful use of marijuana.  There is no evidence of record, and the applicant provides insufficient evidence, to show that his wrongful use of marijuana was the result of PTSD caused by fear based on his experience of being under enemy fire in Grenada.

4.  The evidence of record shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s military service records show instances of him issuing dishonored checks, failing to go at the time prescribed to his appointed place of duty, violation of a lawful command from his company commander, and wrongful use marijuana.  Thus, the applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

6.  The applicant is commended for completion of the Post-Traumatic Stress Disorder Residential Program and his on-going efforts to refrain from the use of alcohol and drugs.  However, these post-service personal accomplishments are not sufficient to overcome his military record of indiscipline or as a basis for upgrading his discharge.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 November 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
18 November 1988.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MJF__  ___LWR_  ___DWS_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




___  _Michael J. Flynn____
          CHAIRPERSON




INDEX

CASE ID
AR20070001491
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/14
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19851119
DISCHARGE AUTHORITY
AR 635-200, Chapter 14, Section III 
DISCHARGE REASON
Misconduct– Commission of a Serious Offense
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.