IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080011158 


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 Under Other Than Honorable Conditions (UOTHC) Discharge be upgraded to a general, under honorable conditions discharge (GD) and that the reason for his separation be changed to either the "good of the service" or "medical."  

2.  The applicant states, in effect, that at the time of his misconduct, he was young, immature, and suffered from depression and alcohol abuse.  He alleges that all offenses of misconduct were dismissed, justified or false.  He also states that he never received any rehabilitation for his problems, and therefore, he  believes his discharge was premature, excessively harsh and unsupported.  He further states that he is now requesting that his UOTHC discharge be upgraded to a GD and that the authority and reason for his separation be changed to either Chapter 10, Army Regulation 635-200, by reason of "good of the service" or Army Regulation 635-40, by reason of medical ("disability").  

3.  The applicant provides the following documents in support of his application:  Separation Documents (DD Form 214); Self-Authored Statement/Disposition Sheet; District of Court Shelby County Texas Court Order, dated 29 June 1992; Consultation Sheet, dated 5 January 1987; Report of Mental Status Evaluation, dated 19 August1987; Physician's Statement; Investigative Report; Military Police Desk Blotter; and National Personnel Records Center (NPRC) Letter, dated 
14 April 2008.


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 (RA) on 8 January 1986, and was trained in and awarded military occupational specialty (MOS) 52D (Power Generation Equipment Repairer).  His record shows he was promoted to specialist four (SP4) on 1 December 1986, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the Army Service Ribbon.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any documents or medical record that indicate he suffered from a disabling mental or medical condition that would have supported his separation processing through medical channels.  

5.  On 19 August 1987, the applicant underwent a Mental Status Evaluation.  The examining psychiatrist stated that the applicant displayed no symptoms of significance that warranted psychiatric medical disposition.  He also stated that the applicant had the mental capacity to understand and participate in proceedings, and that h was cleared for administrative discharge, and such action should be expeditiously executed.

6.  The applicant's OMPF is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing.  The record does include a separation document (DD Form 214) that shows on 
30 October 1987, he was discharged under the provisions of Chapter 14, 
Army Regulation 635-200, by reason of misconduct, and that he received an UOTHC discharge.  It also shows he completed a total of 1 year, 9 months, and 23 days of creditable active military service.

7.  On 29 November 2002, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason of his separation.  

8.  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.  Paragraph 14-12c pertains to a general commission of a serious offense.  

9.  Chapter 10 of the same regulation states 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 trial by court-martial.  An UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  However, the regulation does allow the issue of a GD or honorable discharge (HD) if the separation authority determines is warranted based on the member's overall record of service.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  The regulation stipulates that separation by reason of disability requires processing through the PDES.  Chapter 3, states in pertinent part that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  


11.  Chapter 4 of the disability regulation states that the Physical Evaluation Board (PEB) evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be changed to a GD and that the reason for his discharge should be changed to "for the good of the service" or "medical" was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the 
requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Further, the separations regulation shows that discharges for the good of the service are applicable to members who voluntarily elect discharge in lieu of trial by court-martial after court-martial charges have been preferred against them.  Members separated for this reason also normally receive an UOTHC discharge.  

3.  In this case, there is no evidence of record or independent evidence provided by the applicant that shows he suffered from a mentally or physically disabling condition that would have supported his processing through the PDES at the time of his discharge.  In addition, there is no indication that court-martial charges were preferred against him, or that he ever voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  As a result, there is an insufficient evidentiary basis to support the change to the reason for discharge requested by the applicant.  

4.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of his discharge.  Therefore, Government regularity in the discharge process is presumed.  Absent information and evidence to the contrary, it is concluded that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.  
5.  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.

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)                                         AR20080011158



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ABCMR Record of Proceedings (cont)                                         AR20080011158



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