BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090019792 


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 his under other than honorable conditions (UOTHC) discharge be changed to a medical discharge.

2.  The applicant states his anti-social personality disorder and Post Traumatic Stress Disorder (PTSD) conditions were discovered while he was on active duty, but were not given consideration at the time of his discharge from the Army.

3.  The applicant provides no documentary evidence 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 military record shows he enlisted in the Regular Army (RA) and entered active duty on 13 January 1997.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman), and private first class/E-3 (PFC/E-3) is the highest grade he held while serving on active duty. 

3.  The applicant’s military record also shows he earned the Army Service Ribbon, Overseas Service Ribbon, and Parachutist Badge during his active duty tenure.  His record documents no acts of valor or significant achievement. 

4.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 March 1999, for failing to go to his appointed place of duty at the time prescribed and for twice failing to obey lawful orders given him by a superior noncommissioned officer (NCO).  

5.  The applicant’s military record shows he was counseled eight times from 16 September 1998 to 20 July 1999 for a myriad of disciplinary infractions that included the following:

* Failing to shave
* Failing to be at his appointed place of duty
* Disregarding a lawful order
* Failing to keep positive control of issued equipment
* Being late for formation
* Being arrested for missing a court date and being charged for soliciting

6.  On 26 April 1999, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood or affect, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, met medical retention requirements and had the mental capacity to understand and participate in separation proceedings.

7.  The applicant’s Official Military Personnel File (OMPF) contains a Third Judicial District, Municipality of Anchorage document showing he knowingly solicited, induced, enticed, invited, or procured another for the purpose of prostitution or assignation on 29 May 1999. 


8.  On 7 September 1999, a Bar to DA Form 4126-R (Reenlistment Certificate) was initiated against the applicant based on his NJP record, his record of counseling and his solicitation charge, and domestic violence.  On 9 September 1999, this action was approved.

9.  A Municipality of Anchorage Arrest Report shows the applicant was arrested for first degree robbery and resisting arrest on 4 November 1999.  A Prosecution’s Sentencing Memorandum, Third Judicial Court, confirms the applicant resolved this case with a plea to second degree robbery and resisting arrest.

10.  On an unknown date, the applicant’s unit commander notified the applicant action was being initiated to separate him under the provisions of Chapter 14, Army Regulation 635-200, based on numerous acts of misconduct that included the following:

* Soliciting a prostitute
* Failures to report
* Disobeying lawful orders
* Lack of control over equipment
* Robbery in the first degree
* Resisting arrest

11.  On 15 December 1999, the applicant was advised of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of a waiver of those rights.  The applicant completed his election of rights by waiving consideration of his case by an administrative separation board contingent on receiving a GD.

12.  On 17 March 2000, the separation authority disapproved the applicant’s conditional waiver.  He appointed an administrative separation board to determine the appropriate disposition of the applicant’s elimination under the provisions of paragraph 14-12b and 14-12c of Army Regulation 635-200.

13.  On 19 April 2000, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service.  After considering all of the evidence before it, the administrative separation board recommended the applicant be separated from the Army with a UOTHC discharge based on the serious offenses he committed and his established pattern of misconduct.


14.  The separation authority approved the findings and recommendations of the administrative separation board and directed that the applicant be separated under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, with a UOTHC discharge.  On 8 May 2000, the applicant was discharged accordingly.

15.  The DD Form 214 issued to the applicant upon his discharge on 8 May 2000 confirms he was separated under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  It also shows that he completed a total of 3 years, 3 months, and 26 days of creditable active military service and that he held the rank of private/E-1 at the time of his discharge.

16.  The applicant's OMPF contains no evidence to show that he suffered from a disabling condition at any time during his active duty tenure that would have warranted his separation processing through medical channels.

17.  On 8 August 2005, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's military record and his issues, determined his discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge. 

18.  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, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or general discharge may be awarded; however, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UOTHC discharge be changed to a medical discharge has been carefully considered.  However, the evidence is insufficient to support this request. 

2.  By regulation, a member must be unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record and the provides no indication the applicant suffered from a physically or mentally disqualifying condition that would have supported his separation processing through the Army PDES at the time of his separation, and he has failed to provide independent evidence showing he suffered from a disqualifying medical condition at the time of his discharge.  

3.  The evidence of record shows the applicant’s misconduct separation was processed in accordance with the applicable regulation in effect at the time, which included consideration by an administrative separation board that recommended his discharge.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record reveals an extensive history of misconduct, as evidenced by his record of NJP, counseling, and civil arrests.  It further shows he failed to respond to disciplinary action and counseling.  As a result, it is concluded his discharge accurately reflects his overall record of undistinguished service.  

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)                                         AR20090019792



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ABCMR Record of Proceedings (cont)                                         AR20090019792



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