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ARMY | BCMR | CY2007 | 20070010598
Original file (20070010598.txt) Auto-classification: Denied


RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070010598 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 that his discharge be upgraded from general under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was diagnosed with from Post-Traumatic Stress Disorder (PTSD) due to his service in Iraq.  He states "This came about when I came home and found that my wife of 6 months was pregnant with a child that wasn't mine.  I reported this information to my Platoon Sergeant, SFC S___, who had me see a social worker who further remanded me for a psychological consult.  It was form this consult that I was told that I had PTSD."

3.  The applicant continues that the fact of his wife having been disloyal cause him to drink, use drugs and eventually go absent without leave (AWOL).  He further states that up until that time in his military career he had served with honor and did have a blemish on his record. 

4.  The applicant provides no additional documentation in support of this case.

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 4 March 1986 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 43E (Parachute Rigger).  The applicant was honorably discharged on 17 August 1988 for the purpose of immediate reenlistment on 18 August 1988.

3.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  10 March 1987 for writing bad checks, 10 August 1987 for drinking habits, and 31 August 1987 for disobeying a lawful order.

4.  On 1 September 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly.  

5.  On 9 October 1987, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.  

6.  The applicant received two additional general counseling statements on the following dates:  9 January 1989 for poor job performance and 16 February 
1989 for failure to repair. 

7.  On 3 May 1989, the applicant underwent a mental evaluation and it was determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.

8.  On 10 May 1989, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct – patterns of misconduct.  The reasons cited by the commander was the applicant’s having three failures to repair, being drunk on duty, having poor duty performance, and having failed to maintain sufficient funds in his checking account.  The applicant was advised of his rights and the commander recommended the applicant receive a general discharge.  The applicant was afforded the opportunity to consult with counsel.  He signed a statement declining the opportunity and did not submit a statement in his behalf.

9.  On 18 May 1989, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 25 May 1989, the applicant was separated from the service, in pay grade E-3, after completing 
3 years, 2 months, and 22 days of creditable active service on his second enlistment with no lost time.

10.  The applicant provided a 5-page DVA Rating Decision, dated 31 January 2007, that shows he was awarded a 20 percent disability rating for left shoulder strain and a 70 percent disability rating for PTSD.



11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that 
rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  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.  

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he suffered from PTSD and that PTSD was the cause of his problems while he was in the service.  However, there is no evidence and the applicant has not provided evidence that shows he suffered from PTSD or that any mental disorder was the cause of his problems while serving in the military.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of 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.

4.  The applicant's records show that he received two Articles 15, had numerous general counselings, had three failures to repair, had been drunk on duty, had a poor duty performance, and had failed to maintain sufficient funds in his checking account.  The applicant had completed 3 years, 2 months, and 22 days of creditable active.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SLP _  __PMS __  __LCB__  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.





     ___Shirley L. Powell      _
          CHAIRPERSON




INDEX

CASE ID
AR20070010598
SUFFIX

RECON

DATE BOARDED
29 JANUARY 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.6000.0000
2.

3.

4.

5.

6.


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