IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090003054 


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 general discharge be upgraded to a fully honorable discharge and that his pay grade be restored to E-4.

2.  The applicant states, in effect, that he believes the Army Discharge Review Board (ADRB) should have upgraded his discharge to that of fully honorable and not just to a general discharge.  He also believes his rank should have been restored and he should have received back pay as a result.  He states that he had been promoted to E-4 prior to his accident and the incidents that led to his discharge.  Had he not received a head injury, he would have been able to complete his tour of duty and he would have been promoted to E-5.  

3.  The applicant provides no supporting documentation.

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 Regular Army on 15 February 1979. 

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates:

	a.  on 13 March 1979, for possession of marijuana; 

	b.  on 26 February 1980, for failure to go to his appointed place of duty;

	c.  on 7 July 1980, for being drunk and disorderly in quarters and for wrongfully communicating a threat; and

	d.  on 11 May 1981, for willful disobedience of a lawful order from a commissioned officer.  This action included a reduction in rank from specialist four/pay grade E-4 to the rank of private first class (PFC). 

4.  On 6 January 1980 the applicant received a Letter of Reprimand for driving a government vehicle in excess of 15 miles an hour over the posted speed limit.

5.  In addition to the above NJP's and Letter of Reprimand, the applicant's record contains the following negative counseling statements and incident reports on the following dates:

	a.  on 28 July 1979, for being drunk in public resulting in civilian incarceration;

	b.  on 12 September 1979, for being drunk in public;

	c.  on 20 September 1979, for failure to appear in court, on 28 July 1979, for the charge of being drunk in public;

	d.  on 2 October 1979, for being drunk in public;

	e.  on 16 June 1980, for reporting to work under the influence of alcohol and being unable to perform his duties;

	f.  on 19 June 1980, for being drunk and disorderly;

	g.  on 3 September 1980, for failure to go to his place of duty;

	h.  on 28 October 1980, for failure to keep a dental appointment;
	i.  on 30 December 1980, for speeding in a government vehicle;

	j.  on 1 May 1981, for driving while intoxicated and revocation of his off base pass privileges; and

	k.  on 21 May 1981, for an indefinite revocation of his off base pass privileges and referral to the Drug and Alcohol Abuse Program.

6.  On 24 June 1981, the applicant received a bar to reenlistment.

7.  Included in the medical records are three DA Forms 1051 (Report of Injury) that show:

	a.  he was hospitalized from 29 February to 3 March 1979 for injuries to his face and a mild concussion following an altercation in a civilian bar;

	b.  on 16 July 1980, he received a head injury.  The section describing how the injury occurred is unreadable; and

	c.  he was hospitalized from 6 to 7 September 1980 when he slipped on gravel injuring his right hand.

8.  The applicant's service medical records provide the following information related to a motorcycle accident:

	a.  on 23 January 1981, the applicant was involved in a motorcycle accident.  His injuries included a severe concussion with a 72 hour period of unconsciousness and fractures of both bones in his left forearm that required open reduction and internal fixation with implantation of a plate.  

	b.  during his period of follow up care and physical therapy for his injuries the applicant reported increasingly more frequent headaches with an increase in their severity.  During several of these evaluations the applicant reported no head injuries except the one resulting from the 23 January 1981 accident;

	c.  on 1 May 1981, he was evaluated following his platoon leader noting that the applicant was suffering from a change of personality and reported memory loss;

	d.  a neurological evaluation was conducted with a positive finding of memory loss, partial disorientation, and frontal headaches.  A computer tomography (CT) scan found no abnormalities; however, an electroencephalogram (EEG) found abnormal brain wave activity consistent with closed head trauma; and
	e.  the final medical entry related to his left arm showed that, as a result of the injury, he developed left arm atrophy with decreased strength and digital dexterity. 

9.  On 17 June 1981, the applicant was notified of his commander's intention to separate him under the provisions of Army Regulation 635-200, paragraph 
14-33B(1) due to frequent incidents of a discreditable nature with civil or military authorities (misconduct).  His unit commander recommended that he be separated with an under other than honorable conditions (UOTHC) discharge.

10.  After consulting with counsel, the applicant acknowledged the separation action and waived all of his rights.

11.  The separation authority approved the separation action and directed that the applicant be reduced to the lowest enlisted grade and issued a UOTHC discharge.

12.  The applicant was discharged on 15 August 1981 under the provisions of Army Regulation 635-200, paragraph 14-33B(1) for misconduct - frequent incidents of a discreditable nature with civil or military authorities with a UOTHC discharge.

13.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four (E-4) on 1 December 1980 with reduction to PFC/E-3 on 11 May 1981 and to private/(E-1) on 27 August 1981.

14.  On 22 November 1983, the ADRB upgraded his UOTHC discharge to a general discharge and restored his rank to PFC/E-3.  The reason for separation was reviewed and that board voted not to change the reason.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides in pertinent part that:

   a.  Soldiers may be separated from active duty for misconduct - frequent involvement of a discreditable nature with civil or military authorities when it is established that rehabilitation is impracticable or is unlikely to succeed.

   b.  an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty; 

	c.  a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant a honorable discharge; and

	d.  a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the ADRB should have upgraded his discharge to that of fully honorable, his rank should have been restored to SPC/E-4 and he should have received back pay as a result.  He contends had he not received a head injury, he would have been able to complete his tour of duty and he would have been promoted to E-5.  

2.  The applicant was reduced from E-4 to E-3 as a result of NJP action.  The reduction occurred prior to the separation action; therefore, the restoration of his rank to SPC/E-4 was not warranted and it is still not warranted.

3.  While the applicant did suffer significant injuries as a result of the January 1981 motorcycle accident, his misconduct following the accident was of the same nature as his misconduct preceding the accident.  With the exception of one reference to a post accident personality change, there is no indication that his accident had anything to do with the misconduct that resulted in his discharge.

4.  During the applicant’s entire period of service, he had no period longer than 
4 months between reported infractions.  This shows his service was not consistent with acceptable Army standards and the further upgrade of his discharge is not warranted. 

5.  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 this 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)                                         AR20090003054



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ABCMR Record of Proceedings (cont)                                         AR20090003054



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