IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080007542 


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 records be corrected to show that he qualified for the early separation group (sic temporary early retirement) with back pay and allowances.

2.  The applicant states, in effect, that the evidence surrounding his separation will show that he was unjustly reduced to private and railroaded by his current command since he was admitted as an inpatient on the mental ward at Silas B. Hayes Military Hospital, Fort Ord, California, at the time all non-judicial actions were taken and he was not fully aware of what was happening to him and why.

3.  The applicant provides no additional documentation in support of his request.

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's record shows he enlisted in the Regular Army on 13 September 1978.  He was trained as a Unit Supply Specialist, in military occupational specialty (MOS), 76Y.  He was promoted to sergeant (SGT/E-5) effective 29 March 1984.  

3.  On 29 January 1991, the applicant was punished under Article 15, UCMJ (Uniform Code of Military Justice), for being drunk and disorderly, for disrespecting a commissioned officer, and for willfully disobeying a lawful order from a commissioned officer.  His punishment consisted of a reduction to pay grade E-4, a forfeiture of $583.00 pay for 2 months (suspended for 6 months), and 60 days restriction. 

4.  On 8 March 1991, the applicant was punished under Article 15, UCMJ, for being disorderly, for striking a civilian female, for resisting arrest, and for disobeying a lawful order from a commissioned officer.  His punishment consisted of a reduction to pay grade E1, a forfeiture of $376.00 pay per month for two months, and 45 days restriction and extra duty.

5.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's record contains a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he entered active duty on 13 September 1978 and was honorably discharged under the provisions of Army Regulation 635-200, chapter 5-13, for personality disorder, on 20 March 1991, in the pay grade of E-1.  He had completed 12 years, 6 months, and 8 days of active Federal service.

6.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40, that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldiers ability to perform duty.  

7.  In the National Defense Authorization Act for Fiscal Year 1992, Public Law 102-484, 23 October 1992, Congress enacted the TERA (Temporary Early Retirement Act), which permitted selected military members to retire early and accrue additional military credits if they gained employment with qualifying public or community service organizations.  Section 4403(a) gave each of the Armed Services the temporary early retirement authority to offer retirement at 15 to 20 years of service.  Public Law 107-314, National Defense Authorization Act for fiscal year 2003, section 554, extended the TERA Program end date to 1 September 2002. 
DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  However, the evidence does show that the applicant received two Article 15s, under the UCMJ, for misconduct, and was reduced to pay grade E-4 and E-1.  He was honorably discharged on 20 March 1991, for a personality disorder, in the pay grade of E-1.  He had completed 12 years, 6 months, and 8 days of active Federal service.

2.  In the absence of evidence to the contrary, Government regularity is presumed in the discharge process.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document properly identifies the applicant’s characterization of service and the reason for his discharge.

4.  At the time of the applicant’s discharge from the service in 1991, TERA did not exist.  When TERA was implemented in 1992, the year after the applicant's discharge, it contained no retroactive provisions.  Accordingly, the applicant was not eligible for a 15-year retirement, with back pay and allowances, and the Board finds no basis to grant him one at this time.

5.  The applicant claims that the evidence surrounding his separation will show that he was unjustly reduced to private and railroaded by his current command since he was admitted as a patient to the mental ward at Silas B. Hayes Military Hospital at the time all non-judicial actions were being taken and he was not fully aware of what was happening to him and why.  The applicant's medical records are not available and he provided none to show that he was railroaded by his command while he was allegedly in a patient status at the military hospital.  It is noted that all the facts and circumstances surrounding the applicant's discharge are not available for review; however, the evidence related to his reductions in rank show that actions taken by his command were justified based on his misconduct related to his violence, and disrespect and disobedience to a commissioned officer which was related to the intemperate use of alcohol.  When the applicant acknowledged his Article 15s, it appears he was fully aware of the actions that were being taken against him and that if he felt he were not being treated fairly, he had the right to appeal to the next higher commander in the chain of command.  The applicant did not appeal the actions or the punishments which were imposed.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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

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)                                         AR20080007542



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007542



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1