IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080018778 


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 general discharge be upgraded and the narrative reason for separation be changed.

2.  The applicant states, in effect, that he had a TBI [traumatic brain injury] which affected his ability to perform his duties.  The applicant continues that he reported to sick call on numerous occasions due to the pain he experienced from the injury.  The applicant concludes that due to the nature of the treatment he received at sick call, he could not report to formation and missed formation several times.

3.  The applicant indicates that he submitted a Veteran's Affairs Regional Office claim as additional documentary evidence in support of this application; however, he did not include a copy of the claim with the 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 enlisted in the United States Army under the Delayed Entry Program on 11 July 1989 and enlisted in the Regular Army on 16 August 1989.  He completed basic combat training and advanced individual training.  Upon comple-tion of advanced individual training, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  The highest rank he attained while serving on active duty was the rank of specialist (SPC)/pay grade E-4.  However, at the time of separation he held the rank of private first class (PFC)/pay grade E-3.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to report to his appointed place of duty at the prescribed time (twice) and for willfully disobeying a lawful order from a noncommissioned officer (twice).

4.  The applicant's record also contains numerous DA Forms 4856 (General Counseling Forms) documenting adverse counseling sessions for missing formations, missing work, passing checks without sufficient funds, and failing to maintain a proper military appearance.

5.  The applicant's record also contains documentation of a substantiated incident of mutual spouse abuse.

6.  The applicant's record contains a Standard Form 513 (Consultation Sheet), dated 26 July 1992, which shows the applicant was evaluated by a psychiatrist following a suicide attempt earlier that same day.  The psychiatrist noted that the applicant cited the factors contributing to his state of mind were an impending legal action, marital strife, and occupational strife.  The psychiatrist also noted the applicant was hit in the head by a forklift while in Saudi Arabia a year prior to this incident and he had reported suffering from migraine headaches ever since.  The psychiatrist further noted that during the course of the examination, the applicant stated "I just want out of the Army."  The psychiatrist observed the applicant's thought content was focused on his desire to be out of the Army at all costs.  The psychiatrist opined that the applicant exhibited a mixed disturbance of emotions and conduct which were indications of a borderline personality disorder.  The psychiatrist recommended expeditious administrative separation of the applicant from the Army.

7.  The applicant's record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 27 August 1992, which shows the applicant underwent a psychiatric evaluation at the request of his command.  It was noted that the applicant's behavior appeared to be normal, he was fully alert, he was fully oriented, his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluator's Clinical Diagnostic Impression was that the applicant presented symptoms of "Adjustment Disorder with Mixed Features."  The evaluator opined that it was unlikely that further rehabilitative efforts would be effective and that the applicant was clearly unsuited for further military service due to his demonstrated behavior. The evaluator recommended prompt administrative separation from the Army.

8.  The applicant's record contains a Standard Form 93 (Report of Medical History), dated 16 October 1992, which shows the applicant underwent a physi-cal examination in anticipation of separation from the Army.  Block 8 (Statement of examinee's present health and medications currently used) shows the applicant stated that he was in "Pretty good health."  The applicant also stated, in effect, that he had suffered a head injury in Saudi Arabia and had been having headaches since that time, but recently he had noticed the headaches were not bad and they were occurring less frequently.

9.  On 22 October 1992, the applicant’s unit commander notified him, in effect, that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, paragraph 
13-2, for unsatisfactory performance.  The unit commander also informed the applicant that he was recommending that the applicant receive a characterization of service of "general under honorable conditions."  The unit commander informed the applicant that the separation authority was not bound by his recommendation as to the characterization of service and may direct that his service be characterized as either "honorable" or "general under honorable conditions."  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  

10.  On 22 October 1992, the applicant acknowledged receipt of the unit commander's notification.  On 26 October 1992, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he elected to submit a written statement, statements written on his behalf, and copies of counseling statements he had received.  The applicant also acknowledged his understanding that if he were issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life.

11.  In his statement, dated 28 October 1992, the applicant contended, in effect, that he had served honorably for three years to include a period of time in a foreign country during a wartime situation.  The applicant added that he had tried to stay away from trouble, but it caught up with him.  Additionally, he appealed to the separation authority to grant nothing less than an honorable discharge, in the event that the final decision was to separate him from service because he wanted to be able to get a decent job when he got out of the Army.

12.  On 12 November 1992, the applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation
635-200, chapter 13, paragraph 13-2, for unsatisfactory performance.  The unit commander also recommended that the applicant receive a general discharge under honorable conditions.

13.  On 8 December 1992, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and that his term of service be characterized as "general under honorable conditions."  

14.  On 16 December 1992, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of chapter 13 of Army Regulation 635-200.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

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

16.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

17.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, this regulation states that the narrative reason for a Soldier's separation should be entered in Block 28 of the DD Form 214.  The regulation provides that the narrative reason for separation is based on regulatory authority and can be checked against the cross reference in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes.

19.  Table 2-3 of Army Regulation 635-5-1 provides a cross reference for SPD codes which are applicable to enlisted personnel and shows the narrative reason and regulatory authority associated with each SPD code.  This table shows that SPD code "JHJ" has a narrative reason of "Unsatisfactory Performance" and its regulatory authority is Army Regulation 635-200, chapter 13.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his general discharge should be upgraded and the narrative reason for separation should be changed were carefully considered and determined to lack merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  Evidence shows the applicant made no mention of his misconduct being the result of his head injury when he submitted his appeal to the separation approval authority.  In fact, during his separation physical examination, the applicant stated that his headaches had reduced in both frequency and intensity.
4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge or to have the narrative reason for separation changed.

6.  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 any evidence that would satisfy this requirement and there is no basis for granting his 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.



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         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.