IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080017828 


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 discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he was suffering from post traumatic stress disorder (PTSD) at the time of his discharge.  He further contends that he was not given a medical examination at the time of his separation and did not go before a medical evaluation board or a physical evaluation board. 

3.  The applicant provides no additional documentation 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.  On 2 February 1978, the applicant enlisted in the Indiana Army National Guard for 6 years.  He entered active duty for training on 2 April 1978 and was assigned to Fort Benning, Georgia, for infantry training.  He completed this training, was awarded military occupational specialty (MOS) 11B (Infantryman), and released from active duty effective 13 July 1978.  He was transferred back to his Army National Guard unit.

3.  On 26 February 1980, the applicant was separated from the Indiana Army National Guard and involuntarily ordered to active duty due to unsatisfactory participation.  On 27 February 1980, the applicant entered active duty for a period of 2 years.  He was assigned for duty as a grenadier with the 1st Battalion, 41st Infantry Regiment, at Fort Hood, Texas.

4.  On 8 August 1980, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order by not reporting to formation.  The punishment included reduction to pay grade E-1 (suspended), a forfeiture of $100.00 pay per month for 1 month, and 14 days of extra duty.

5.  On 13 November 1980, the applicant received NJP for being disrespectful in deportment toward a noncommissioned officer, for failing to go to his place of duty, for being disrespectful in language, and for willfully disobeying a lawful order from a noncommissioned officer.  The punishment included reduction to pay grade E-1, a forfeiture of $100.00 pay per month for 1 month, and 21 days of confinement.

6.  On 23 February 1981, the applicant received NJP for willfully disobeying a lawful order from a noncommissioned officer [two occasions] and for being disrespectful in language and deportment toward a noncommissioned officer.  The punishment included a forfeiture of $100.00 pay per month for 2 months (suspended) and 21 days confinement.  The applicant's appeal was denied.  On 25 February 1981, that portion of the punishment pertaining to forfeiture was vacated.

7.  On 26 February 1981, the applicant was convicted by a summary court-martial of violation of Article 90, UCMJ for willfully disobeying a lawful order from a commissioned officer; and for violation of Article 91, for willfully disobeying a lawful order from a noncommissioned officer.  His sentence consisted of confinement at hard labor for 30 days and forfeiture of $100.00 pay per month for 1 month.

8.  On 9 March 1981, the applicant's commander recommended that he be barred to reenlistment.  The commander noted the applicant's record of NJP's and court-martial.  The commander further stated that the applicant failed to respond to both counseling and NJP.  He had total disregard for authority and refused to listen to his superiors.  The applicant had a negative attitude.  The appropriate authority approved the recommendation.

9.  On 2 April 1981, the applicant received NJP for being absent without leave (AWOL) on 24 March 1981.  The punishment included a forfeiture of $100.00 pay per month for one month and 7 days of confinement.

10.  On 9 April 1981, the applicant was convicted by a summary court-martial of violation of Article 91 for willfully disobeying a lawful order from a noncommissioned officer and of violation of Article 92 for dereliction of duty.  His sentence consisted of confinement at hard labor for 30 days.

11.  On 14 April 1981, the applicant underwent a medical examination and was found qualified for separation with a physical profile of 1-1-1-1-1-1.

12.  On 14 August 1981, the applicant was convicted by special court-martial of violation of Article 91 for assaulting a noncommissioned officer, willfully disobeying a lawful order from a noncommissioned officer, and being disrespectful in language towards a noncommissioned officer.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $334.00 pay per month for 6 months.

13.  The discharge packet is missing from his military records.  However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 7 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted), paragraph 
14-33b(1) due to misconduct - frequent incidents of a discreditable nature with civilian and military authorities.  His service was characterized as under other than honorable conditions.  He had completed 1 year and 4 months of creditable active duty.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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 that could result in a punitive discharge, 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.

16.  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.

17.  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.

18.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not receive a medical examination at the time of his separation and that he was suffering from PTSD.

2.  The evidence of record shows that the applicant received four NJP's, three courts-martial, and was barred to reenlistment.  Clearly, this is evidence of frequent incidents of a discreditable nature.

3.  The evidence of record clearly shows that the applicant was given a medical examination and found qualified for separation.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

5.  There is no available evidence showing that the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.
6.  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 the aforementioned requirement.

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

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)                                         AR20080017828





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ABCMR Record of Proceedings (cont)                                         AR20080017828



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