IN THE CASE OF:	  

		BOARD DATE:	        3 November 2009

		DOCKET NUMBER:  AR20090010189 


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 under other than honorable conditions (UOTHC) discharge be upgraded and that the reason for separation be changed.  

2.  The applicant states, in effect, that he served on active duty for 21 months and he is trained in mortuary affairs, search and recovery missions, extractions from downed aircraft, and casualties in armed conflict to natural disasters with loss of life.  He states that his unit deployed to the Persian Gulf in Operation Desert Shield/Storm and he was attached to the XVIII Airborne Corps.  He states his position was graves registration specialist and his permanent unit of assignment was the 54th Quartermaster Company.  He claims he cannot sleep at all and he has flashbacks of his work activities.  He claims he just cannot seem to put mental and psychological closure on the work activities.  

3.  The applicant claims he made the choice to serve out of honor, duty, and respect that he has for our forefathers and the founders of this great nation, and for those who served before him.  He also served for those who have fallen for this great nation and he served to the best of his ability.  He states that he defended his country in a war zone and honors his God and country.  He states that he knows the meaning of honor and he did not intentionally perform in a manner other than honorable.  He claims he was suffering psychological and emotionally and that his wife divorced him after he returned home from the war.  

4.  The applicant claims he was very fragile during this period and the war was a big stressor for him.  He claims he still struggles with psychological and mental disabilities since his return from the Persian Gulf War and he is extremely irritable.  He indicates he has trouble concentrating, racing thoughts and he suffers from skin rashes.  He claims he suffers from a Post Traumatic Stress Disorder (PTSD) and mild schizophrenia.  He states the armed conflict is devastating mentally and physically to all parties of war.  He claims his discharge was supposed to be upgraded to a general discharge (GD), under honorable conditions within 6 months and that his GI Bill was paid in full.  He states that he is unable to keep a job and he suffers from extreme paranoia and flashbacks all the time.

5.  The applicant provides five letters of support and his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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's record shows that he enlisted in the Regular Army and entered active duty on 6 August 1990.  He was trained in and awarded military occupational specialty (MOS) 57F (Graves Registration Specialist).  

3. The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in item 18 (Appointments and Reductions), that he was promoted to private first class (PFC) on 1 October 1991, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private (PV1)/E-1 on 3 December 1991.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure he earned the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

4.  The Gulf War Database shows the applicant served in Operation Desert Shield/Storm from 21 October 1990 through 18 April 1991.

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  25 March 1991, for being disrespectful in language and deportment towards a superior noncommissioned officer (NCO); 17 July 1991, for threatening to wrongfully injure the reputation of another individual; and 3 December 1991, for wrongfully using marijuana.  

6.  On 5 November 1991, the applicant underwent a mental status evaluation based on a command referral as a result of being charged with spousal abuse.  The examiner found the applicant was not suffering from any significant psychiatric conditions that would have prevented him from participating in separation processing, and the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.  His record is void of any medical records indicating that he was suffering from any disqualifying physical or mental conditions that would have supported his separation processing through medical channels.  

7.  On 10 December 1991, the unit commander notified the applicant of his intent to initiate action to separate the applicant under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The unit commander cited the applicant's NJP record, his apprehension by civil authorities for a domestic disturbance and brandishing a weapon, his testing positive for THC (tetrahydrocannabinol, the psychoactive compound in marijuana) on 15 October 1991, and his apprehension by military police for assault consummated by battery on 12 November 1991.  The unit commander informed the applicant he was recommending the applicant receive an UOTHC discharge. 

8.  On 15 January 1992, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he waived his right to consideration of his case by an administrative separation board and his right to a personal appearance before an administrative separation board.  He elected to submit a statement in his own behalf.  In the statement, he indicated that his wife had recently left him and he was under great stress.  He claimed that while his separation was pending, it took a great emotional toll on him and his family.  He commented that he recognized he had not been a perfect Soldier, but he had tried.  He stated he could see he had no future in the service and he wanted to do all he could to save his marriage and family and in light of his circumstances, he requested that he be issued a GD rather than an UOTHC discharge.  


9.  On 4 February 1992, the separation authority directed the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, by reason of an established pattern of misconduct (misconduct-drug abuse) and that he receive a UOTHC discharge.  On 10 February 1992, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant shows he completed a total of 1 year, 6 months, and 5 days of active military service.  It further shows that during his active duty tenure, he earned the National Defense Service Medal, Army Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The narrative reason for separation listed in item 28 (narrative reason for separation) was "misconduct-abuse of illegal drugs."  

10.  The applicant provides five character reference statements from family and friends.  These individuals attest to the applicant's good character and to the fact he was traumatized by his experiences in the Persian Gulf war.  

11.  On 16 April 1997, after carefully considering the applicant's entire service record, the Army Discharge Review Board (ADRB) found the applicant's discharge for misconduct, based on a pattern of misconduct was proper and equitable.  The ADRB did vote to change the narrative reason for discharge from "misconduct-abuse of illegal drugs" to "misconduct" based on a pattern of misconduct as was recommended by the applicant's unit commander and approved by the separation authority. 

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  

13.  Paragraph 14-3 of the same regulation contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge (GD), under honorable conditions if such is merited by the Soldier's overall record.  A characterization of honorable, or honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.  


14.  Paragraph 3-7a of the same regulation provides that an HD 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.  Paragraph 3-7b of the same regulation provides that a GD 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's contention that his UOTHC discharge should be upgraded and that the reason for separation should be changed to a reason that is more favorable because of his overall record of service, which includes service in the Persian Gulf war and because he suffers from PTSD as a result of his experiences in the Army were carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, a UOTHC discharge is normally considered appropriate for members separated under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  Although the applicant's good character and post service conduct and the impact his war experiences had on him as attested to in the supporting statements are noteworthy, there is no evidence that he was suffering from any disabling physical or mental conditions during his active duty service that would have mitigated or contributed to the misconduct that led to his discharge, as evidenced by a mental status evaluation on file in his record.  His record does reveal a significant disciplinary history that includes his acceptance of NJP on three separate occasions, spousal abuse, and drug abuse.  These offenses more than supported his separation based on an established pattern of misconduct and the UOTHC discharge he received.  


4.  It is clear the applicant's record was not sufficiently meritorious to support the issuance of a GD or HD by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.  Further, a change to the narrative reason for separation beyond that already granted by the ADRB would not be appropriate based on his overall record of service.  

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)                                         AR20090010189



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ABCMR Record of Proceedings (cont)                                         AR20090010189


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