IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014265 


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 under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states he would like his discharge upgraded because he suffered from post-traumatic stress disorder (PTSD) when he returned from Operation Desert Shield/Desert Storm.  He states he suffered this mental injury due to the stress of war time.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 28 March 1989.  His highest grade attained was specialist four, E-4.  He served in Southwest Asia from September 1990 to August 1991.

3.  The applicant underwent a psychiatric examination on 19 December 1991.  The psychiatrist indicated the applicant allegedly had a drug-related incident although the applicant denied it was his fault.  The clinical evaluation revealed no evidence of any significant psychiatric illness or condition sufficient to warrant disposition through medical channels.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by command.

4.  On 26 December 1991, the applicant underwent a separation physical and was found qualified for separation.  The examining physician entered in part, "post trauma" in block 74 (Summary of Defects and Diagnoses) of the applicant's Standard Form 88 (Report of Medical Examination).  He was given a physical profile of "1(T)31111."

5.  On 9 January 1992, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using cocaine on or about 3 October 1991.

6.  On 4 March 1992, the applicant submitted a request for a conditional waiver of an administrative board.  He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general under honorable conditions.  He submitted statements in his own behalf; however, his statements are not available.

7.  On 18 March 1992, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct(commission of a serious offense).  He was advised of his rights.

8.  On 20 March 1992, the applicant consulted with legal counsel and submitted statements in his own behalf.  His statements are not available.

9.  The unit commander recommended that the applicant be separated from the U.S. Army prior to the expiration of his term of service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander stated the applicant did not desire nor had the potential for future productive service.  He also stated the applicant was consistently involved in incidents within the unit and was becoming a morale problem for the command.

10.  On 7 April 1992, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), for misconduct (commission of a serious offense - abuse of illegal drugs) with issuance of a general under honorable conditions discharge.

11.  On 21 April 1992, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  At the time of his discharge he had completed 3 years and 24 days of creditable active service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he would like his discharge upgraded because he suffered from PTSD when he returned from Operation Desert Shield/Desert Storm is acknowledged.  However, the evidence of record shows that prior to the applicant's separation in April 1992, competent medical authority determined that he was then medically qualified for separation with a physical profile of 1(T)31111.  There is insufficient evidence which indicates his military career was ended due to a diagnosis of PTSD.

2.  The evidence of record shows the applicant received an Article 15 for using cocaine.

3.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.

4.  Considering the seriousness of the applicant's offense, it appears that his service was appropriately characterized.

5.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to a fully honorable discharge.

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)                                         AR20090014265



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ABCMR Record of Proceedings (cont)                                         AR20090014265



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