IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100008730 


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 discharge to an honorable discharge.

2.  The applicant states, in effect, that he suffers from Post-Traumatic Stress Disorder (PTSD) from serving in the Army.  He contends that his condition was present during his tenure and for that reason his discharge should be changed to reflect this.  He requests that his discharge be reviewed for upgrade based on his military personnel file.

3.  He claims he was a good Soldier who received various awards.  He was an expert tow missile gunner and was also airborne and air assault qualified.  He had an accident while in the Army which forever changed his life and him at the time.  He contends he lost everything in life, but God has allowed him to start over thanks to the Department of Veterans Affairs (VA).  His PTSD caused him to be a bad Soldier towards the end of his career. 

4.  He adds that he receives service-connected disability for frostbite from the VA from his service in the military.  He states he was mentally ill with PTSD when he was discharged from the Army but did not know this at the time.  

5.  The applicant did not provide any documentation in support of his request. 




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 he initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 17 January 1985 for a period of
8 years.  He was discharged from the USAR DEP on 20 February 1985 and he enlisted in the Regular Army on 21 February 1985 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).

3.  On 15 October 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 13 July 1985 and 13 August 1985.
 
4.  On 14 April 1986, the applicant accepted NJP under Article 15, UCMJ for willfully and wrongfully damaging a video machine by breaking the back of it off.

5.  On 3 June 1986, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for commission of a serious offense - illegal drug abuse.  The applicant subsequently acknowledged receipt of the separation memorandum.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He advised the applicant that he could receive an honorable or a general discharge.

6.  The applicant submitted a statement on his behalf.  He stated it was not his first time requesting a chapter action.  He and his wife have thought it out very carefully and had come to the conclusion that a discharge would be in the best interest for his family.  He apologized for the mistakes he made while in the 


Army; however, he does not believe the Army should dominate Soldiers the way they do.  He adds, he didn't believe in what the Army stood for; however, he believed in what the United States stood for.  He believes he owes his family more than he owes the Army.  He contends the Army will continue to exist with or without him.  He has kept himself neatly groomed.  He could not afford to send his uniform to the cleaners so he does them by hand.  He believes the chapter is in the best interest of the U.S. Army.

7.  The applicant's records do not contain any medical documentation and he has not provided any to show he was diagnosed with a mental illness at the time of his discharge.

8.  On 6 June 1986, the company commander recommended the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct, including larceny and illegal drug use.  He stated the applicant has demonstrated by his actions and statements that he is not motivated to be in the Army.  His pattern of misconduct will continue until he has been released from his enlistment obligation.  On 10 June 1986, the intermediate commander concurred with the unit commander and recommended discharge.

9.  On 11 June 1986, the separation authority approved the chain of command's request for discharge of the applicant under the provisions of Army Regulation 635-200, paragraph 14-12, for a pattern of misconduct, with issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on
17 June 1986 with a general discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a general character of service.  This form further confirms that he completed 1 year, 3 months, and 27 days of total active service.

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

11.  Army Regulation 635-200 (Personnel Separations) 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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 discharge if 


such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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's request to upgrade his general discharge to an honorable discharge was carefully considered and found not to be supported by the evidence.

2.  The evidence shows that the applicant was given notice on 3 June 1986 that action was being initiated to discharge him from the Army under the provisions of Army Regulation 635-200, chapter 14, for a misconduct.  The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d for misconduct - drug abuse.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's records do not contain any medical documentation and he has not provided any to show he was diagnosed with a mental illness at the time of his discharge.  Therefore, there is no reason to consider PTSD as the basis for his misconduct and discharge type.

4.  Based on his record of indiscipline and misconduct, which includes two instances of NJP under Article 15, UCMJ, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20100008730



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ABCMR Record of Proceedings (cont)                                         AR20100008730



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