IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010068 


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 and change of his narrative reason for separation to hardship.

2.  The applicant states his 18-month old daughter was hospitalized due to an illness and subsequently died.  He explains that the medication she needed was only regulated to be administered to 2-year old children.  The applicant states he was only 23 years old and very angry.  He says he was not provided counseling and he set out on a destructive path.  The applicant concludes that before this situation occurred, his record was exemplary.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 18 October 1982.

3.  On 6 July 1987, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for the wrongful use of marijuana.

4.  Evidence of record shows a DA Form 3822-R (Report of Mental Status Evaluation) on the applicant was completed on 9 February 1988, which cleared him for separation.  The physician assistant opined that the applicant was mentally responsible and he had the mental capacity to understand and participate in separation proceedings.  The following blocks were checked on the evaluation form:

* Behavior - normal
* Level of alertness - fully alert
* Level of orientation - fully oriented
* Mood or affect - unremarkable
* Thinking process - clear
* Thought content - normal
* Memory - good

5.  The company commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsatisfactory duty performance.  The applicant acknowledged receipt of the commander's notification.

6.  On 24 February 1988, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects and the rights available to him, he waived his right to counsel.  He elected to submit statements on his behalf; however, the statements are not contained in the available records.  The applicant acknowledged that he could encounter substantial prejudice in civilian life if a general discharge was issued.  

7.  On 26 February 1988, the company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13.  The specific reasons cited were the applicant received numerous counseling statements for his unsatisfactory duty performance and his duty performance did not improve.  Additionally, the applicant received an Article 15 for illegal use of marijuana and caused damage to his military quarters.

8.  On 2 March 1988, the appropriate separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200,
chapter 13, with a general discharge.  He was discharged accordingly on
11 March 1988.  He completed 5 years, 4 months, and 23 days of creditable active service.

9.  There is no evidence of record or any provided by the applicant concerning the death of his 18-month old daughter.  There is also no evidence the applicant raised this situation to his chain of command or any other available support agency for assistance.

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

11.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 6 of this regulation governs separation because of dependency or hardship.  The regulation provides that dependency exists when death or disability of a member of a Soldier's (or spouse) immediate family causes that member to rely upon the Soldier for principal care or support.  Hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  

12.  Army Regulation 635-200 states that chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

13.  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, in effect, that his discharge should be upgraded and the reason for his discharge should be changed to hardship.  He offers that the death of his 18-month old daughter set him on a destructive path.

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that shows he was experiencing difficulties after the death of his daughter and he reported his hardship to his chain of command or solicited help from the support channels available at his installation.  Furthermore, there is no evidence that the applicant voluntarily requested separation for hardship.

3.  The mental evaluation conducted at the time of the applicant's discharge confirms that he had no significant mental illness.  The evaluation also confirms that the applicant was able to distinguish right from wrong and adhere to the right.  In view of these facts, the applicant's contention that his discharge should be upgraded based on his situation is not sufficient as a basis for upgrading 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)                                         AR20100010068



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010068



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1