BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090007811 


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 under honorable conditions discharge be upgraded to honorable. 

2.  The applicant states that he suffered from post-traumatic stress disorder from Operation Desert Shield/Storm and should have received counseling and a little more help.  Since his discharge, he has been through counseling, has gotten married, and graduated from college.  He feels that he has changed.  He served his country bravely and honorably and has turned his life around.  He is a great citizen.

3.  The applicant provides no 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.  The applicant served in the U.S. Army Reserve from May 1987 until his 4-year enlistment in the Regular Army on 1 March 1989.  He completed his initial training and was awarded military occupational specialty 12B (Combat Engineer).

3.  In April 1989, the applicant completed the Basic Airborne Course and was assigned for duty at Fort Bragg, North Carolina.

4.  The applicant was counseled on 7 June 1989 for not complying with his restriction to quarters and for the importance of being on time for appointments.  The applicant concurred and signed the counseling form.

5.  On 14 June 1989, the applicant was counseled for writing a check without sufficient funds in his account.  He concurred and signed the counseling form.

6.  On 22 June 1989, the applicant was counseled for being unshaven and not keeping his squad leader informed of his whereabouts.  He concurred and signed the counseling form.

7.  The applicant was promoted to specialist, pay grade E-4, on 1 October 1990.

8.  During the period from 14 October 1990 to 3 April 1991, the applicant served in Saudi Arabia in support of Operation Desert Shield/Storm.

9.  On 15 July 1991, the applicant accepted NJP for failure to report for recovery detail.  The punishment included 7 days of extra duty and restriction (suspended).

10.  On 20 August 1991, the applicant was counseled for failing to report for unit recall because of car troubles and for exceeding the allowable distance from post while on pass.  The applicant stated that he had informed his first sergeant and company commander of where he was going and could not make it back at the required time.  The applicant non-concurred and signed the counseling form.

11.  On 26 August 1991, the applicant was counseled for not being at his place of duty and for disobeying a lawful order [no specifics mentioned].  The applicant concurred and signed the counseling form.

12.  On 28 August 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for missing morning formation.  The punishment included 14 days of extra duty and restriction (restriction suspended).

13.  On 13 January 1992, the applicant accepted NJP for missing a company and battalion manifest call for an airborne operation.  The punishment included 14 days of extra duty and restriction (restriction suspended for 90 days).

14.  On 10 April 1992, the applicant was counseled regarding his not being recommended for promotion.  He possessed the potential to lead Soldiers, but lacked the initiative to successfully perform as a noncommissioned officer.  The applicant concurred and signed the counseling form.

15.  On 5 May 1992, the applicant was counseled for losing his identification card.  This was the second time that he had lost it.  He concurred and signed the counseling form.

16.  On 2 July 1992, the applicant accepted NJP for wrongful possession of cocaine.  The punishment included reduction to pay grade E-2, forfeiture of $440.00 pay per month for 2 months, and 45 days of extra duty and restriction.

17.  On 23 July 1992, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for a pattern of misconduct.  The commander cited the applicant's negative counseling statements, NJP's, a bar to reenlistment, and his history of failing to follow instructions and regulations.  The commander recommended that the applicant receive an under other than honorable conditions discharge.

18.  On 27 July 1992, the applicant offered to waive consideration of his case by an administrative separation board on the condition that he receive a general discharge.

19.  On 23 November 1992, a board of officers convened to consider the applicant for elimination under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The applicant and his counsel were present.  Government and defense witnesses testified and documentary evidence was presented.  The board adjourned the same day.  However, the board's findings and recommendation are not available for review.

20.  On 23 December 1992, the appropriate authority approved the commander's recommendation for discharge and directed that the applicant be issued a DD Form 257A (General Discharge Certificate).

21.  Accordingly, on 19 February 1993, the applicant was discharged under honorable conditions.  He had completed 3 years, 11 months, and 10 days of creditable active service during this period.

22.  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.

23.  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.

24.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that because he served his country bravely and honorably and has turned his life around his discharge should be upgraded to fully honorable.  He also contends that he suffered from post-traumatic stress disorder from Operation Desert Shield/Storm and should have received counseling and a little more help.

2.  The evidence of record shows that the applicant’s pattern of misconduct started in 1989, well before he served in Operation Desert Shield/Storm.  Therefore, there is insufficient evidence to show that post-traumatic stress disorder was the cause of his later misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.

5.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of misconduct during his military service.
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 this 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)                                         AR20090007811



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ABCMR Record of Proceedings (cont)                                         AR20090007811



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