IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090008541 


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 an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions or an honorable discharge.

2.  The applicant states that he entered the Army at the age of 18 and that while he was in the Army he started drinking and using drugs.  He adds that the misconduct shown on his records is a result of his addiction.  Additionally, he was never given any type of treatment during his military service and that his addiction even continued after his discharge.  His life has been crippled because of this early introduction to and usage of drugs and alcohol.  He further adds that after his discharge, he was in and out of prison and sought treatment through a drug treatment center.  He was evaluated at times as being psychotic, depressed, homicidal, suicidal, and with post traumatic stress disorder (PTSD).  He also states that during his overseas tour, he was considered in an absent without leave (AWOL) status.  As a young and addicted individual who was also tending to his girlfriend, he used the drug called "crank" and "skochi yellow," which were sold at the local drug store.  However, his performance on post and his job assignment was always honorable.  He concludes that he is much older now and feels he should receive assistance from the country he served.  He had never requested assistance before; but, now with these active duty related disabilities, he needs help.

3.  The applicant provides a copy of a Catholic Charities/Catholic Family Services, Inc, Meriden, CT Termination Form, dated 22 January 2002; a copy of an Imperial Point Medical Center [Fort Lauderdale, FL] psychiatric evaluation report, dated 29 March 2002; and a copy of his Florida Department of Corrections, Mental Health Evaluation and Treatment Record, dated 5 December 2007, in support of his request.

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’s records show he was born on 15 May 1961 and he enlisted in the Regular Army (RA) at 18 years and 2 months of age for a period of 3 years on 31 July 1979.  He completed basic combat training at Fort Jackson, SC and was subsequently reassigned to Fort Lee, VA, for advanced individual training (AIT).

3.  On 5 November 1979, the applicant departed his AIT unit in an AWOL status. However, he returned to his unit the next day.  He subsequently completed AIT and he was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).  He was subsequently reassigned to Fort Hood, TX. 

4.  The applicant's records also show he served in Korea from on or about 22 March 1981 to on or about 15 June 1982.  His records further show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, Overseas Service Ribbon, and the Army Service Ribbon.  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.

5.  The applicant's record show he was reported in an AWOL status during the periods on or about 29 September 1980 through on or about 30 September 1980, on or about 16 January 1981 through on or about 19 January 1981, and on or about 13 May 1982 through on or about 3 June 1982.

6.  The applicant’s records also reveal an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 16 May 1980, for wrongfully and unlawfully making a false statement that the amount of $500.00 was stolen from his wall-locker at Fort Hood, on or about 20 March 1980.  His punishment consisted of a forfeiture of $100.00 pay for one month and 14 days of extra duty; 

	b.  on 5 June 1980, for failing to go at the time prescribed to his appointed place of duty on or about 31 May 1980.  His punishment consisted of a forfeiture of $97.00 pay for one month, reduction to private (PVT)/E-1 (suspended for 90 days), and 14 days of extra duty; 

	c.  on 6 July 1981, for being disrespectful in language towards a superior noncommissioned officer on or about 26 June 1981 and disobeying a lawful regulation in that he wrongfully disposed off duty-free goods (a color TV and a VCR) on or about 19 June 1981 and on or about an unspecified date in July 1981.  His punishment consisted of a reduction to private first class (PFC)/E-3, 30 days of extra duty and restriction, and a forfeiture of $200.00 pay for one month; and

	d.  on 23 March 1982, for willfully disobeying a lawful order from a commissioned officer on or about 14 February 1982, being disrespectful in language and deportment toward a superior warrant officer on or about 7 February 1982, and making a false statement on or about 7 February 1982.  His punishment consisted of a forfeiture of $200.00 pay for one month and restriction until his departure from Korea.

7.  On 25 March 1982, the applicant was investigated by agents of the U.S. Army Criminal Investigation Command for selling controlled items to a local Korean national.

8.  On 30 April 1982, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his continued misconduct.  He remarked that the applicant's duty performance had been adequate; however, his conduct off duty had been totally unacceptable.  As evident by the numerous instances of NJP, the applicant had no respect for authority and he would not make any effort to conform to standards expected of a member of the U.S. Army. He was furnished with a copy of the bar to reenlistment; however, he elected not to submit a statement in his own behalf.  The bar was ultimately approved by his battalion commander.

9.  On 2 May 1982, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a superior commissioned officer on or about 14 April 1982.  His punishment consisted of a forfeiture of $275.00 pay for 2 months, and 45 days of extra duty and restriction.  

10.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 16 June 1982 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with a character of service of under other than honorable conditions.  This form further shows he completed 2 years, 9 months, and
19 days of creditable active service and he had 27 days of lost time.

11.  There is no indication that the applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitation.

12.  The applicant submitted copies of various medical/psychiatric evaluations that were conducted several years after his discharge by charitable institutions or correctional facilities that essentially show he was diagnosed with depression. 

13.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 his under other than honorable conditions discharge should be upgraded.

2.  The evidence of record shows the applicant was 18 years and 2 months of age at the time of his enlistment and between 19 and 20 years of age at the time he committed his various infractions.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service or that his extensive history of misconduct was a result of his age.

3.  There is no documentary evidence in the applicant’s records that he used drugs, failed a urinalysis, or was punished for drug abuse.  In fact, none of his multiple instances of NJP is related to drugs. 

4.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 16 June 1982 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct, frequent incidents of a discreditable nature with civil or military authorities, with a character of service of under other than honorable conditions.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it appears that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

6.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  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 evidence that would satisfy this requirement.  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)                                         AR20090008541



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ABCMR Record of Proceedings (cont)                                         AR20090008541



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