IN THE CASE OF:	  

		BOARD DATE:	       9 JULY 2009

		DOCKET NUMBER:  AR20090002379 


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 that his discharge be upgraded from general under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that at the time he suffered from Post-Traumatic Stress Disorder (PTSD) and could only find relief in alcohol.  He states that the military did not even try to save his career.  He further states that his commander and first sergeant both stated that they wanted to get rid of the war baby.  The applicant states that presently he is 70 percent disabled and would like an honorable discharge that reflects his service during war.    

3.  The applicant provides no additional documentation in support of this case.

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 Texas Army National Guard (TXARNG) on
21 July 1989 and was ordered to active duty for training (ADT) on 28 June 
1990 to undergo his training.  He completed his training as a combat engineer at Fort Leonard Wood, Missouri and was released from ADT on 4 October 
1990.  He was returned to his TXARNG unit and, on 26 November 1990, he was honorably discharged from the TXARNG to enlist in the Regular Army.   

3.  On 27 November 1990, he enlisted in the Regular Army and was transferred to Germany on 9 December 1990.  He was advanced to the pay grade of E-3 on 1 August 1991.  During his tour in Germany he deployed and served in Southwest Asia in support of Operation Desert Shield/Storm for a period of 5 months before deploying back to Germany.  He departed Germany on 2 June 1992 and was transferred to Fort Carson, Colorado.  

4.  In October 1992, the applicant was counseled regarding his failure of a record Army Physical Fitness Test (APFT).  In January 1993, he was counseled regarding a report that he had abused his spouse during the Christmas Holidays and that a case number had been assigned.  The applicant asserted that the accusation was false and that it did not occur during the Christmas Holidays.  

5.  During the period of May through July 1993, he was counseled on at least four occasions for failure to go to his place of duty at the appointed time. 

6.  On 7 July 1993, nonjudicial punishment (NJP) was imposed against the applicant for two specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay (both suspended for 90 days), extra duty and restriction.

7.  On 24 August 1993, the applicant underwent a mental status evaluation and was deemed mentally responsible.

8.  Although all of the facts and circumstances are not present in the available records, it appears that he was arrested by civil authorities and was convicted of driving under the influence.  He was sentenced to 30 days in the work release program at the El Paso County Jail.


9.  His records show that he was confined by civil authorities during the periods of 11 June through 16 June 1993 and 2 October through 23 October 1993.

10.  On 29 November 1993, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – due to his conviction by civil authorities.  The applicant was advised that he could receive a discharge under other than honorable conditions and he was advised of all of his rights.  He refused to consult with counsel and informed the commander that he just wanted the chapter discharge expedited.  He waived all of his rights and elected not to submit a statement in his own behalf.  

11.  On 30 November 1993, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct– conviction by civil authorities.  On 10 December 1993, the applicant was separated from the service, in pay grade E-3, after completing 2 years, 11 months, and 16 days of creditable active service with 35 days of lost time due to civil confinement.

12  The applicant applied to the Army Discharge Review Board (ADRB) on 
18 June 1998 requesting that his discharge be upgraded to honorable based on the same issues he has asserted to this Board.  The ADRB conducted a review of his records and determined that his discharge was both proper and equitable, given the circumstances of his case.  The ADRB denied his appeal on 2 August 1998.  The applicant was subsequently afforded a personal appearance before the ADRB on 9 April 2003 and when he failed to show for that hearing, the ADRB informed him that he must apply to this Board for further relief. 
 
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 





14.  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.  

15.  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 that he suffered from PTSD and that PTSD was the cause of his problems while he was in the service.  However, there is no evidence and the applicant has not provided evidence that shows he suffered from PTSD or that any mental disorder was the cause of his problems while serving in the military.  In addition, there is no evidence that he sought assistance from his chain of command, chaplain, or from the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) to assist him with his problems prior to discharge.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received one Article 15, had numerous general counselings, had four failures to repair, had abused his wife, had been convicted of driving under the influence, and had been confined by civil authorities.  The applicant had completed 2 years, 11 months, and 16 days of creditable active service with 35 days of lost time due to civil confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.


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)                                         AR20090002379



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002379



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1