IN THE CASE OF:	 

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090015045 


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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he was an excellent noncommissioned officer (NCO) with nearly perfect evaluations until he witnessed various traumatic incidents that caused his performance to vary.  Due to those incidents, he is now receiving 70 percent service connected disability for post-traumatic stress disorder (PTSD).  The applicant states that his unsatisfactory performance was due to the trauma he suffered while in the service.  Therefore, his discharge should be upgraded to honorable.

3.  The applicant indicates that he provides a Department of Veterans Affairs (DVA) claim number 264XXXXXX; however, it is not included in the 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 July 1980, he successfully completed the training requirements, and he was awarded military occupational specialty 11B (Infantryman).  On 5 June 1984, he was promoted to the rank of sergeant, pay grade E-5.

3.  On 17 August 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving the scene of a vehicle accident.  His punishment consisted of a reduction in rank to specialist, pay grade E-4 and 30 days of extra duty.

4.  On 7 December 1985, the applicant accepted NJP under Article 15, UCMJ for failure to be at his appointed place of duty.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  

* 26 and 27 November 1985 and 2 December 1985 for missing the first formation
* 3 December 1985 – owing back rent to property owner, failure to pay privately owned vehicle (POV) insurance for 5 months, and an evidence of alcohol abuse
* 30 December 1985 – breaking restriction

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), approved on 16 January 1986, indicates the applicant was barred from reenlistment for receiving two Article 15s and for non-payment of debts on the following dates:

* 7 March 1985 – U.S. Army Commissary $25.00
* 15 March 1985 – American Express $500.00
* 22 March 1985 - American Express $400.00
* 26 March 1985 - 117th Finance dishonored check $495.00
* 5 April 1985 – Army Air Force Exchange Service (AAFES) Class VI dishonored check $412.00
* 16 April 1985 – AAFES dishonored check $139.40
* 22 November 1985 – landlord rent DM 3,300




7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 7 January 1986, shows the applicant underwent a mental evaluation by a military medical physician who determined he could distinguish right from wrong and he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.

8.  The applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The reasons cited by the commander were the applicant's recurrent acts of misconduct, indebtedness to several institutions (military and civilian), a lackadaisical attitude towards indebtedness, performance, and alcohol-related problems.

9.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant requested counsel and elected to submit a statement on his own behalf; however, no statement is available.

10.  On 1 April 1986, the appropriate authority waived further rehabilitative measures and approved the applicant's elimination under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  The applicant was discharged accordingly, on 24 April 1986.  He had completed 5 years, 8 months, and 28 days of creditable active service with no lost time.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that 
a member may be separated when it is determined that he is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

12.  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 contends that he witnessed various traumatic incidents that caused his performance to decline while in the military and he now suffers from PTSD.  

2.  There is no medical evidence of record that shows he had any mental problems or that his misconduct was related to traumatic experiences.  On        24 April 1986, a military physician evaluated the applicant and found him to have no disqualifying mental defects sufficient to warrant disposition through medical channels and that the applicant had the mental capacity to understand and participate in board proceedings.  Therefore, the evidence is insufficient to support this argument.  

3.  The applicant's records show he received two Article 15s, had numerous general counseling's, numerous failures to repair, and he failed to maintain sufficient funds in his checking account to cover the checks that he had written.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090015045



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ABCMR Record of Proceedings (cont)                                         AR20090015045



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