BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011969 


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 upgrade of his general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states, in effect, that he was an outstanding Soldier prior to returning from deployment to Southwest Asia in support of Operation Desert Shield/Desert Storm.  He notes he was always at the top of his class, he was promoted well ahead of his contemporaries, and he was awarded multiple decorations during his military service, including two bronze stars for his service during the Gulf War.

3.  The applicant states that he was involved in a truck accident while in Saudi Arabia and that one of his friends was killed.  He states he was having a lot of trouble dealing with the situation and when he returned to the United States he was depressed, having trouble coping, and he was seeing dead bodies.  He states ultimately he turned to drugs and alcohol and that his chain of command failed to “force” him to get professional help.  Rather, they attempted to salvage his career by keeping his condition from the “Army brass.”

4.  The applicant states that eventually he began stealing and he was finally convicted by a civilian court of forgery, theft, and worthless checks.  He was sentenced to prison in Georgia but he also had charges pending against him in Florida.  He states an attorney from Fort Stewart, GA came to see him and told him the Army was offering him a deal to be discharged because of his civilian conviction.  He states he was told the Army handled his situation poorly and as such he would receive an honorable discharge.
5.  The applicant notes that subsequent to that he was diagnosed with several conditions related to his military service which rendered him incompetent and he now maintains he should get the honorable discharge he was promised.

6.  The applicant provides documents from 2002 and 2003 which show he was diagnosed with a schizoaffective disorder, depressed type, posttraumatic stress disorder, cocaine and cannabis dependence, and a history of traumatic brain injury.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 2 November 1988 in pay grade E-3.  He was 21 years old at the time and he had completed approximately 2 years of college.  Following completion of training as an equipment maintenance clerk he was assigned to a Transportation Company at Hunter Army Airfield, GA.

3.  In October 1990 the applicant deployed to Saudi Arabia in support of Operation Desert Shield.  He remained in Saudi Arabia through April 1991 in support of Operation Desert Storm.  By March 1991 he had been promoted to pay grade E-5.  On 20 February 1992 he executed an enlistment extension action in order to complete a with dependents tour of duty in Germany.  His extension established his scheduled separation date as 1 April 1995.

4.  In July 1992 the applicant pled guilty to four counts of forgery in the first degree (checks belonging to another Soldier) and 26 counts of writing worthless checks.  He waived his right to a trial by jury in the Superior Court of Chatham County, GA and was sentenced to 4 years, to be served on probation as a first offender.  On 7 December 1992 his probation was revoked when he violated his parole by again committing the offense of forgery in the first degree and failing to 
report to his probation officer.  The applicant was then convicted of four more counts of forgery in the first degree and ten counts of writing worthless checks.  His sentence was again set at 4 years but would run concurrently with the previous 4 year sentence.

5.  In an undated memorandum, the applicant’s unit commander informed him (the applicant) that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, as a result of his civil conviction for more than one year.  The unit commander informed the applicant he was recommending an under other than honorable conditions discharge.

6.  On 16 May 1993 the applicant submitted a statement asking that he be granted an “honorable conditions discharge.”  In his statement, the applicant essentially highlighted the same information he provided as part of his petition to this Board.  He cited his previously outstanding record and his numerous accomplishments.  He noted his only mistake was to start using drugs and indicated his situation with the civilian courts was not entirely his fault.  He stated that he had approached his platoon sergeant about his drug problem but he was told to keep quiet and to try to beat his problem on his own.  He states he was on orders for Germany and he was told to be quiet and go to Germany.  He states he went AWOL (absent without leave) because his life was on the line with his drug dealer who was also in the Army.  He stated that his “maintenance tech” told him to him to get out of town until he could come up with the money needed to pay off the drug dealer.  He notes he merely did what he was advised.  He then related that he told his commander but she would not allow him to take to leave to sign into a drug center and she never gave him a command referral.  He states he did go to the Drug and Alcohol Center several times but did get any help.

7.  Ultimately, on 4 June 1993 the applicant waived his attendant rights “contingent upon my receiving a General – Under Honorable Conditions Discharge.”

8.  On 9 June 1993 the appropriate separation authority approved the recommendation for discharge and directed the applicant’s service be characterized as general, under honorable conditions.

9.  On 22 June 1993 the applicant was discharged in pay grade E-5 under the provisions of Army Regulation 635-200, chapter 14 (civilian conviction).  His service was characterized as general, under honorable conditions.  He was credited with 3 years, 7 months, and 23 days of active Federal service.

10.  As of the date of the applicant’s request to this Board (25 June 2009) his address was listed as Polk Correction Institution in Florida.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes conviction by a civil court.  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, under honorable conditions discharge if such is merited by the Soldier's overall record.

13.  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 argues that he was told that if he waived his rights he would receive an honorable discharge.  However, evidence available to the Board confirms the applicant waived his rights contingent upon receiving a general, under honorable conditions discharge.

2.  The fact that he received a general, under honorable conditions discharge is likely an indication that members of his chain of command considered his prior good service in deciding to issue him a general, under honorable conditions discharge rather than a discharge under other than honorable condition which is normally issued in such cases.

3.  His argument that his discharge should be upgraded to a fully honorable discharge because the Army failed to provide him the help he needed for his drug problem is not supported by any evidence in his available record or provided by him.  That fact that he was determined to be incompetent in 2002/2003 is not evidence that his 1993 discharge was unfair or inequitable.


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

5.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

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 the aforementioned 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)                                         AR20090011969



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ABCMR Record of Proceedings (cont)                                         AR20090011969



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