IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080004852 


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, that his discharge be upgraded and his rank and pay grade be restored to sergeant/pay grade E-5. 

2.  The applicant states, in effect, that his discharge occurred due to Post Traumatic Stress Disorder.  He did not receive the proper treatment for Post Traumatic Stress Disorder and he did not understand what he was going through until being diagnosed at the Veterans Administration Hospital.  He believes that he served his country well.  The applicant concludes that he has tried seven times to locate his military medical records.

3.  The applicant provided no additional documentary evidence in support of this application.

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 facts and circumstances of the applicant's separation are not available for review with this case.  However, there are sufficient records available to make a fair and impartial decision.

3.  The available evidence shows that he entered active duty on 6 August 1986 and was awarded military occupational specialty (MOS) 11B (Combat Infantryman) and served until he was honorably discharged on 27 February 1989.  

4.  On 28 February 1989 he reenlisted in the Army for a period of 5 years.  He served two tours of duty in Korea during the periods 30 July 1988 through 
28 April 1989 and 10 October 1991 through 25 August 1992.  

5.  The applicant's records show he received the Bronze Star Medal with V Device, the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon with Numeral 2, the Non-Commissioned Officer Professional Development Ribbon, and the 
Marksman Marksmanship Qualification Badge with Rifle Bar for qualifying with the M-16 Rifle.

6.  The available evidence reveals a disciplinary history which includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 October 1986, disobeying a lawful order by using tobacco products in the company area, and for being disrespectful towards a noncommissioned officer who was in the execution of his office by failing to come to the position of parade rest and to be at ease.

7.  An available DD Form 458 (Charge Sheet), dated 15 July 1993, shows the applicant was charged with being absent without leave (AWOL) during the period 25 May 1993 through 1 June 1993 and during the period 10 June 1993 through 15 July 1993.

8.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, Oklahoma Orders Number 214-22, dated 2 August 1994, shows the applicant would be effectively discharged on 16 August 1994.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued on 16 August 1994 at the time of his discharge confirms he was separated under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separation) in lieu of court-martial with a characterization of service as under other than honorable conditions, in the rank of private/pay grade E-1.  This form shows that the applicant completed a total of 7 years and 3 days of creditable active military service.  The highest rank the applicant held while on active duty was sergeant/pay grade E5.

10.  Item 30 (Remarks) of the applicant's DD Form 214 shows he had 372 days of lost time under Title 10 U.S.C. during the periods 7 July 1987 through 8 July 1987, 25 May 1993 through 1 June 1993, and 10 June 1993 through 9 June 1994.

11.  There are no medical records in the applicant's available military personnel file that show he was suffering from any medically unfitting conditions or that he was treated for Post Traumatic Stress Disorder.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  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.

15.  On 11 January 2008, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge.  The ADRB determined that the discharge was both proper and equitable. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he suffered from Post Traumatic Stress Disorder and that his rank and pay grade should be restored to sergeant/pay grade E-5 were carefully considered and determined to be without merit.  

2.  There is no evidence in the available records and the applicant has provided no evidence to show that he suffered from Post Traumatic Stress Disorder during his military service or that Post Traumatic Stress Disorder was the cause of his indiscipline and subsequent separation.  

3.  Although the applicant's service records are incomplete, a review of the applicant's records show his first period of service was honorable and that his second period of service is accurately reflected by the under other than honorable conditions discharge that he was issued at the time of separation.  

4.  Separations under the provision of chapter 10 are voluntary and the requestor must admit guilt to the charges against him.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 

5.  The available evidence shows the applicant was punished under the UCMJ for disobeying a lawful order, for being disrespectful towards a non-commissioned officer, and for being AWOL for a total of 364 days.  The applicant's records show that as a direct result of his disciplinary actions he was reduced in rank to private/pay grade E-1 and separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of court-martial.  

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20080004852



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004852



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1