IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100010823 


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 reconsideration of the Board's denial of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge and that the reason for separation be changed.  

2.  The applicant states he was not thoroughly evaluated and was discharged unjustly.  He states he has a service connected disability, post-traumatic stress disorder (PTSD), which has worsened since his discharge from the military.

3.  The applicant provides a Psychological Assessment Report, a medical statement by a medical doctor, and a copy of his social security check in addition to the four letters of support and his DD Form 214 (Certificate of Release or Discharge from Active Duty) from his original application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010189, on 3 November 2009.

2.  The Psychological Assessment Report, the medical statement, and the copy of his social security check provided by the applicant are new evidence, which requires the Board to reconsider his request.

3.  The applicant's military records show he enlisted in the Regular Army on 6 August 1990.  He completed initial entry training and was awarded the military occupational specialty of graves registration specialist.  The highest rank he held while serving on active duty was private first class/E-3.  He was later reduced to private/E-1.

4.  The Gulf War Database shows he served in Operation Desert Shield/Storm from 21 October 1990 through 18 April 1991.

5.  His records show he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions during the period 25 March 1991 to 3 December 1991 for being disrespectful in language and deportment towards a superior noncommissioned officer (NCO); for threatening to wrongfully injure the reputation of another individual; and for wrongfully using marijuana with an allied comment indicating he unlawfully struck his spouse in the face with his hand in violation of Article 128 of the UCMJ.

6.  On 5 November 1991, he underwent a mental status evaluation based on a command referral following charges of spousal abuse.  The examiner found he was not suffering from any significant psychiatric conditions that would have prevented him from participating in separation processing, and he was psychiatrically cleared for any administrative action deemed appropriate by the command.  His record is void of any medical records indicating that he was suffering from any disqualifying physical or mental conditions that would have supported his separation processing through medical channels. 

7.  On 10 December 1991, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The unit commander cited his NJP record, his apprehension by civil authorities for a domestic disturbance and brandishing a firearm, his testing positive for marijuana, and his apprehension by military police for assault consummated by battery.  The unit commander informed the applicant he was recommending he receive a UOTHC discharge. 

8.  On 15 January 1992, he consulted with legal counsel and was advised of the basis of the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He elected to submit a statement in his own behalf.  In the statement, he indicated that his wife had recently left him and he was under great stress.  He claimed that while his separation was pending, it took a great emotional toll on him and his family.  He commented that he recognized he had not been a perfect Soldier, but he had tried.  He stated he could see he had no future in the service and he wanted to do all he could to save his marriage and family and in light of his circumstances, he requested that he be issued a general discharge rather than a UOTHC discharge.  

9.  On 4 February 1992, the separation authority directed his discharge under the provisions of chapter 14 of Army Regulation 635-200, due to an established pattern of misconduct (misconduct-drug abuse) and that he receive a UOTHC discharge.

10.  On 10 February 1992, he was discharged accordingly.  The DD Form 214 issued to him shows he completed a total of 1 year, 6 months, and 5 days of active military service.  It further shows that during his active duty tenure he earned the National Defense Service Medal, Army Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The narrative reason for separation listed in item 28 (narrative reason for separation) was misconduct-abuse of illegal drugs.  

11.  He provided character reference statements from his parents and friends.  These individuals attest to the applicant's good character and that he experienced some trauma during his military service.  

12.  On 16 April 1997, after carefully considering his entire service record, the Army Discharge Review Board (ADRB) found his discharge based on a pattern of misconduct was proper and equitable.  The ADRB did vote to change the narrative reason for discharge from "misconduct-abuse of illegal drugs" to "misconduct" based on a pattern of misconduct as was recommended by the applicant's unit commander and approved by the separation authority.

13.  The applicant  provided a Psychological Assessment Report which was completed on 25 February 2008 in response to a referral for a psychological consultative examination – mental status only – to help determine if he qualified for disability benefits due to “Lower Lumbar Problems, Post Traumatic Stress Syndrome (PTSD).”  The summary of the report indicates he has diagnoses of PTSD, Personality Disorder not otherwise specified (NOS), chronic back pain, and several diagnoses related to drug abuse and dependence.

14.  He also provided a “Medical statement concerning depression with anxiety, Obsessive-Compulsive Disorder (OCD), PTSD or panic disorder for Social Security disability claim.”  The statement, dated 13 July 2009, indicated he had signs and symptoms including: sleep disturbance; psychomotor agitation or retardation; difficulty concentrating or thinking; hallucinations; delusions or paranoid thinking; recurrent severe panic attacks; and recurrent and intrusive recollections of a traumatic experience.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion, and absence without leave.  Action was to be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed.  Paragraph 14-3 of the same regulation stated a UOTHC discharge was normally appropriate for a Soldier discharged under this chapter. 

16.  Paragraph 3-7a of the same regulation 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  Paragraph 3-7b of the same regulation provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not thoroughly evaluated and discharged unjustly and that he has a service-connected disability of PTSD was carefully considered.  However, there is insufficient evidence to support this claim.  He was given a mental status evaluation prior to being discharged.

2.  The fact that the applicant was diagnosed with PTSD 16 years after his discharge does not establish he had that condition on active duty.

3.  His records show he accepted NJP on three separate occasions for being disrespectful in language and deportment towards a superior NCO; for threatening to wrongfully injure the reputation of another individual; and for wrongfully using marijuana with an allied comment indicating he unlawfully struck his spouse in the face with his hand in violation of Article 128 of the UCMJ.  Such conduct would certainly warrant an administrative discharge.

4.  Based on the applicant's record of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  The evidence of record indicates all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  The applicant's good character and post-service conduct and the impact his war experiences had on him as attested to in the supporting statements by family, friends, and medical and mental evaluation reports are noteworthy.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct that he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.  Further, a change to the narrative reason for separation beyond that already granted by the ADRB would not be appropriate based on his overall record of service.  

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090010189, dated 3 November 2009.



      _______ _ 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)                                         AR20100010823



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ABCMR Record of Proceedings (cont)                                         AR20100010823



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