IN THE CASE OF:	 

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080014468 


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 under other than honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states the medical profile he received for his back condition was ignored by his commander and he was forced back to duty.  He states he took a large quantity of medication to try to ease the pain.  He further states his problems began from day one with his commander and were racially motivated.  He states his vehicle was vandalized by others in the unit.  He further states the grief of his assignment was too much to bear and resulted in his being hospitalized for mental anguish. 

3.  The applicant provides, in support of his application, copies of an undated and unsigned statement from his church; a radiology readout; and a record of treatment from OSF Medical Group.

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 military personnel record shows he initially enlisted in the Regular Army on 24 February 1987 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 31V (Tactical Communications Systems Operator).

3.  On 6 August 1987, the applicant was assigned to Headquarters and Headquarters Company, 5th Battalion, 187th Infantry Regiment at Fort Campbell, Kentucky.

4.  The applicant's service medical records show that on 6 October 1987, he was treated for an injury to his back due to improper lifting.  He was prescribed Robaxin (Methocarbamol, a muscle relaxant, to be used with rest, physical therapy, and other measures to relax muscles and relieve pain and discomfort caused by strains, sprains, and other muscle injuries) and Motrin (ibuprofen, used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis [arthritis caused by a breakdown of the lining of the joints] and rheumatoid arthritis [arthritis caused by swelling of the lining of the joints]).  He was placed on quarters for 24 hours and returned to duty.

5.  On 9 October 1987, he was apprehended in the field for using a controlled substance, specifically, marijuana.  After being processed by the military police, the applicant was placed on guard duty.  He then consumed handfuls of pills until all bottles were depleted.  He blacked out and then was transported to the hospital to have his stomach pumped.  

6.  A formal line of duty (LOD) investigation was conducted concerning the applicant's drug overdose on 9 October 1987.  The medical diagnosis was suicide gesture and adjustment disorder with depressed mood.  The LOD investigation determined that at the time of the incident the applicant was present for duty and that he had been temporarily assigned to the Battalion Aid Station in an effort to reduce stress on his previous back injury.  The LOD investigation further determined that intentional misconduct was the proximate cause of his drug overdose and the applicant was mentally sound.  The LOD investigation found the incident to be not in line of duty - due to own misconduct.

7.  On 13 October 1987, the applicant was evaluated by a major of the Medical Corps, Chief of Psychiatry Service at Fort Campbell.  The examiner found that the applicant met the physical retention standards prescribed in Army 
Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in proceedings.

8.  The examiner stated the applicant was experiencing an adjustment reaction to the reasonable demands of the military service.  The examiner recommended the applicant be considered for administrative action as deemed appropriate by command, to include separation from the service.

9.  On 15 December 1987, the applicant was convicted by a summary court-martial (SCM) of two specifications of failure to go at the time prescribed to his appointed place of duty and wrongful possession of marijuana on 9 October 1987.

10.  On 21 January 1988, the applicant's commander notified him that action was being initiated to separate him due to commission of a serious offense - illegal drug possession.  The commander advised the applicant of his right to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander also advised the applicant the proposed separation could result in an under other than honorable conditions discharge.

11.  On 25 January 1988, the applicant's commander recommended him for an under other than honorable conditions discharge due to drug abuse under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations).

12.  On 9 February 1988, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 for abuse of illegal drugs.  The applicant did not submit statements in his own behalf and waived counsel for representation.  The applicant acknowledged that as a result of a discharge under other that honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and state laws and that he could expect to encounter substantial prejudice in civilian life. 



13.  On 24 February 1988, the appropriate authority approved the recommendation for discharge of the applicant under the provisions of 
paragraph 14-12d of Army Regulation 635-200 and directed that he be issued an under other than honorable conditions discharge.

14.  On 29 February 1988, the applicant was discharged under the provisions of paragraph 14-12d of Army Regulation 635-200 by reason of drug abuse.  He had completed 11 months and 12 days of active service that was characterized as under other than honorable conditions.  He had 24 days time lost. 

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  The medical records, dated 4 and 5 August 2008, submitted by the applicant show he continues to be treated for mild lower lumbar spine degenerative joint disease.  

17.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph
14-12d of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

18.  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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant contends his problem with his commander was racially motivated and that his vehicle was vandalized by members of his own unit.  However, he did not provide any evidence to support these contentions.  Therefore, these contentions were not considered as mitigating in the determination of this case.

3.  The applicant contends his commander ignored his back condition and he was forced to return to duty.  However, the medical records show he was prescribed Robaxin and Motrin, placed on quarters for 24 hours, and returned to 
duty.  The LOD investigation found that at the time of the applicant's suicide gesture he had been temporarily assigned to the Battalion Aid Station in an effort to reduce the stress on his back.  Therefore, the applicant's contention is not supported by the evidence.

4.  Medical records submitted by the applicant show his medical condition over 
20 years after his discharge.  Therefore, these records were not considered as a mitigating factor in the determination of this case.

5.  The statement from the applicant's church was both undated and unsigned.  Therefore, this statement was not considered in the determination of this case.

6.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

8.  The ABCMR does not upgrade discharges based solely on the passage of time.


9.  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 that 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)                                         AR20080014468



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ABCMR Record of Proceedings (cont)                                         AR20080014468



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