BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100009080 


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 general discharge under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states he suffered from a mental condition due to an airplane crash during his military service.  He explains he was an outstanding Soldier who served at least one active duty mission overseas and received numerous awards.  The applicant states 250 lives were lost in the airplane crash and he knew quite a few of the people who lost their lives on that flight.  He offers that later he was placed on orders to Korea and requested stateside duty due to his fear of flying, but was denied.  He maintains his inability to fly as a result of the airplane crash caused him to receive a less than honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), internet article "Arrow Air Flight 1285," and three supporting statements.

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 enlisted in the Regular Army and entered active duty on 24 January 1985.  

3.  On 13 July 1986, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his appointed place of duty on two separate occasions and dereliction of duty.  His punishment consisted of reduction to the grade of E-2, forfeiture of $167.00 pay, 14 days of restriction, and 14 days of extra duty.

4.  On 14 August 1986, NJP was imposed against the applicant for disobeying a lawful order and being disrespectful to two noncommissioned officers (NCO).  His punishment consisted of reduction to the grade of E-1, forfeiture of $319.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.

5.  Headquarters, 2d Infantry Brigade, 101st Airborne Division (Air Assault) Fort Campbell, Kentucky, Subject:  Report of Result of Trial, shows that on
22 August 1986, the applicant was convicted by a summary court-martial for failure to repair, absence without leave from 19 August 1986 to 20 August 1986, disobeying an order from his commanding officer, and assault on an NCO.  His sentence consisted of forfeiture of $400.00 pay and confinement for 30 days. 

6.  Judgment and Probation/Commitment Order dated 17 October 1986 shows the applicant was found guilty of larceny of government property.  The applicant was sentenced to imprisonment for a period of 40 days and $150.00 plus $25.00 for special assessment.  The judgment stated "believing it to be in the best interest of the defendant and the United States, execution of entire jail sentence suspended and defendant placed on supervised probation for six (6) months."

7.  On 27 June 1986, the applicant underwent a mental status evaluation that psychiatrically cleared him for any action deemed appropriate by the command. The mental health officer stated the following.

	a.  The applicant resented and opposed demands to increase or maintain a given level of functioning.  Associated features were hostility toward others, anti-authoritarian attitude, failure to accept social norms, and unwillingness to sustain consistent work behavior. 

	b.  The applicant's behavior of "staring into space" or not responding to verbal stimuli was pure fake.  His passive-aggressive traits of forgetfulness, procrastination, stubbornness, and intentional inefficiency attested to this fact.

	c.  The applicant was able to distinguish between right and wrong and can adhere to the right.  Since the applicant was unwilling to perform his military duties or follow orders, he should be considered for administrative action
under the provisions of Army Regulation 635-200.  In light of the above, the command may want to consider Uniform Code of Military Justice action, to include court-martial.

8.  On 18 November 1986, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14, commission of a serious offense, larceny.  He stated the applicant's misconduct was evidenced by documented record of NJP and conviction by court-martial and civil court.

9.  On 18 November 1986, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, the applicant elected not to submit a statement on his behalf.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

10.  On 18 November 1986, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed that the applicant be furnished a General Discharge Certificate.

11.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he served in the Sinai from 9 July 1985 to 4 December 1985.  Additionally, item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the following:  Army Service Ribbon, Expert Marksmanship Qualification Badge M16 Rifle, Marksman Marksmanship Qualification Badge/Hand Grenade, Army Achievement Medal, Multi-National Forces Observers Medal, Army Superior Unit Award, and Sharpshooter Marksmanship Qualification Badge Dragon Gunner.
12.  The applicant's DD Form 214 shows he was discharged on 25 November 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c, misconduct - commission of a serious offense, with a characterization of service of general under honorable conditions.  The applicant was credited with completing 1 year, 9 months, and 6 days of active service with the period of 
19 August 1986 to 19 August 1986 and 22 August 1986 to 15 September 1986 listed as time lost under Title 10 USC 972.

13.  The internet article titled "Arrow Air Flight 1285" stated that on 12 December 1985, an aircraft carrying U.S. service members, mostly from the 101st Airborne Division, crashed.  The flight was en route to Fort Campbell, Kentucky and contained 248 passengers and 8 crewmembers.  There were no survivors.

14.  The applicant provided three supporting statements from personnel associated with the Homeless Men's Shelter.  The authors of these statements attested to the applicant's progress in maintaining permanent employment, maturity, and mental and emotional growth. 

15.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge is normally appropriate for a member who is discharged for acts and patterns of misconduct.

17.  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 states he was an outstanding Soldier who served at least one active duty mission overseas and received numerous awards.  However, he suffered from a mental condition due to an airplane crash and this condition caused him to receive a general discharge.

2.  A review of the applicant's records verifies that he did serve in the Sinai and received numerous awards during his 1 year and 9 months in the Army.  This fact could account for the reason he received a general discharge instead of an under other than honorable conditions discharge.  Nevertheless, there is no evidence and the applicant has not provided any to show that he sought counseling or treatment concerning his mental state.  Additionally, his records contain a mental evaluation, conducted by a qualified mental health officer, which shows he was mentally cleared for discharge.

3.  In addition, it is difficult to understand how his larceny of government property would have been related to his fear of flying.

4.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an 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)                                         AR20100009080





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)