IN THE CASE OF:	 

		BOARD DATE:	    17 February 2011

		DOCKET NUMBER:  AR20100020864 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that he has been diagnosed with post-traumatic stress disorder (PTSD).  He believes that he had this condition while on active duty and that his behavior which resulted in his discharge was due to this condition. 

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Long Beach Veterans Affairs Medical Center (VAMC) Outpatient Problem List, printed on 15 July 2010

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 records show he enlisted in the Regular Army on 3 May 1989. He completed the training requirements and he was awarded military occupational specialty 88M (Motor Transport Operator).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  His records also show he served in Saudi Arabia from 20 September 1990 to 12 April 1991.

4.  His records reveal an extensive history of counseling by members of his chain of command for various infractions to include failure to report, being out of ranks in formation, misconduct, missing formation, being disrespectful, missing physical fitness, and causing disturbances in the barracks.

5.  On 28 July 1990, he was apprehended by the Military Police at Fort Hood, TX, for aggravated assault subsequent to an altercation with another Soldier.

6.  On 29 May 1991, he was apprehended by the Military Police for drunk driving and possession of an open alcoholic container. 

7.  On 28 July 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for driving a passenger car while drunk.  His punishment imposed on 29 July 1991 consisted of:

* reduction to private (PV2)/E-2 (suspended until 28 January 1992)
* forfeiture of $463.00 pay per month for two months (suspension of $213.00 per month until 28 January 1992)
* extra duty for 45 days

8.  On 31 October 1991, he was involved in a vehicle accident.  When Military Police official arrived, he made several threatening statements that led to his arrest where he was apprehended and jailed

9.  On 15 November 1991, he was arrested by civilian authorities for driving a passenger car while intoxicated.

10.  On 15 November 1991, his installation driving privileges were suspended for 2 years. 

11.  On 20 November 1991, the suspension of punishment of reduction to PV2/
E-2 and forfeiture of pay imposed on 29 July 1991 was vacated and the unexecuted portion was ordered executed.

12.  On 13 January 1992, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12(b), for misconduct - pattern of misconduct.  The immediate commander cited the applicant's prior NJP, substandard duty performance, and numerous counseling statements.  He further recommended a general discharge.

13.  On 17 January 1992, he acknowledged receipt of the commander's intent to separate him under the provisions of Army Regulation 635-200, chapter 14.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive 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 waived a personal appearance before an administrative separation board and elected not to submit a statement in his own behalf.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

14.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12(b), for misconduct - a pattern of misconduct.  The immediate commander again cited the applicant's prior misconduct and recommended a general discharge.

15.  On 22 January 1992, his intermediate commander recommended approval of the applicant's discharge with the issuance of a general discharge.

16.  On 24 January 1992, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - pattern of misconduct and directed the issuance of a general discharge.  Accordingly, the applicant was discharged on 14 February 1992.

17.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct with a general discharge under honorable conditions.  This form further confirms he completed 2 years, 9 months, and
12 days of creditable active service.

18.  There is no indication in his records he suffered from PTSD or any other illness or disease during his military service.  

19.  He submitted a VAMC Problem List, printed on 15 July 2010, that shows he suffered from various illnesses or disease between 6 November 2007 and
18 June 2010.

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

21.  Army Regulation 635-200, 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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

22.  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 evidence of record shows the applicant had an extensive history of disciplinary problems and/or misconduct that included drunk driving, multiple arrests by military or civilian authorities, NJP, and failure to respond to counseling.  His misconduct started before he deployed to Saudi Arabia.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

2.  There is no evidence in his records and he failed to provide any evidence that shows he suffered from PTSD during his military service or that his extensive history of misconduct was caused by PTSD.

3.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

4.  Based on his record of indiscipline, 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100020864



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020864



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1