IN THE CASE OF:	  

		BOARD DATE:	       30 DECEMBER 2008

		DOCKET NUMBER:  AR20080017443 


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 an upgrade of his discharge.

2.  The applicant states that the Department of Veterans Affairs (DVA) has awarded him a 50 percent disability rating due to Post Traumatic Stress Disorder (PTSD) which was not addressed by the Army.  He adds that he has continuously been seeing a psychiatrist and receiving counseling since 1991 and that he has been sober and clean for 17 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 March 1993, and a copy of the DVA rating decision, dated 10 September 2008, in support of his 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 applicant's records show that he enlisted in the Regular Army for a period of 4 years on 20 February 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records show he was awarded the Parachutist Badge, the Expert Infantryman Badge, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any achievements or significant acts during his military service.

4.  On 18 August 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one specification of being absent without leave (AWOL) during an unknown period.  His punishment consisted of 7 days of restriction and 7 days of extra duty.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) is not available for review with this case.

5.  On 4 November 1987, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his one instance of AWOL and a prior instance of driving under the influence (DUI) of alcohol in October 1987.  The facts and circumstances surrounding his DUI are not available for review with this case.  The applicant was furnished with a copy of this bar; however, he elected not to submit a statement on his own behalf.  His battalion commander subsequently approved this bar.

6.  On 29 July 1988, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine. 

7.  On 12 August 1988, the applicant departed his unit at Fort Bragg, North Carolina, in an AWOL status.  His records show that he was hospitalized on 16 August 1988 and returned to duty on 18 August 1988.  The facts and circumstances surrounding his illness and/or hospitalization are not available for review with this case.

8.  On 22 August 1988, the applicant departed his unit in an AWOL status again. He returned on 16 September 1988.




9.  On 14 October 1988, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for wrongfully using cocaine between about 22 July 1988 and 24 July 1988.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $335.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.  On 19 October 1988, the applicant appealed his punishment to the next superior authority; however, on 3 November 1988, his appeal was denied.

10.  On 19 October 1988, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods on or about 12 August 1988 through on or about 16 August 1988 and on or about 22 August 1988 through on or about 16 September 1988.

11.  On 21 November 1988, the applicant pled guilty at a Summary Court-Martial to two specifications of being AWOL from 12 August 1988 to 16 August 1988 and from 22 August 1988 to 16 September 1988.  The court sentenced him to confinement for 30 days.  The sentence was adjudged on 21 November 1988 and approved on 30 November 1988. 

12.  On 23 February 1989, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct, abuse of illegal drugs.

13.  On 23 February 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board o officer and waived personal appearance before a board of officers.  He also elected to submit a statement on his own behalf.

14.  On 1 March 1989, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct, abuse of illegal drugs.  Specifically, the immediate commander remarked that the applicant had one instance of AWOL in August 1987, one instance of DUI in October 19877, two more instances of AWOL in 1988, and one instance of cocaine use in 1988.  The immediate commander further remarked that the serious nature of the applicant’s offenses warranted this type of discharge. 

15.  On 2 March 1989, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.

16.  On 2 March 1989, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of AR 635-200 by reason of misconduct, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 20 March 1989.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms he completed a total of 3 years and 10 months of creditable military service and had 55 days of lost time.

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

18.  The applicant submitted a copy of his DVA rating decision, dated 10 September 2008 that shows he was rated at 50 percent disability for PTSD. 

19.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

20.  AR 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  .

21.  AR 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 that his discharge should be upgraded.

2.  There is no evidence in the applicant's record, and the applicant did not provide substantiating evidence, that shows he suffered from PTSD during his military service or that he addressed such condition and/or sought treatment through the medical channels.  Furthermore, there is no evidence that the applicant's indiscipline was a result of his PTSD.  

3.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.



      _______ _XXX   _______   ___
               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)                                         AR20080017443



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ABCMR Record of Proceedings (cont)                                         AR20080017443



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