BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110002596 


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 under honorable conditions discharge to fully honorable.  

2.  He states he was misdiagnosed with Post Traumatic Stress Disorder (PTSD) and “Gulf War Syndrome.”

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Chapter 14 discharge proceedings

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 enlisted in the Regular Army on 29 May 1990 for a period of 4 years and 17 weeks.  He served in Saudi Arabia from 9 January 1991 through 22 June 1991.  His highest grade held was specialist (SPC)/E-4.  However, he held the grade of private (PV2)/E-2 at the time of his separation.  

3.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, UCMJ on two occasions for the following offenses:

* failing to go to his place of duty at the appointed time 
* being disrespectful in language toward a superior noncommissioned officer (NCO)
* violating a lawful general regulation by wrongfully consuming an alcoholic beverage while being under the age of 21

4.  He received numerous adverse counseling statements for driving while intoxicated, drinking under age, not meeting the standards of performance for a SPC/E-4 in an airborne company, failing to follow orders, missing movement, being disrespectful towards an NCO, not being at place of duty at appointed time, being insubordinate towards an NCO, and disobeying a direct order.

5.  The unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for misconduct – commission of a serious offense.  The applicant was advised of his rights.

6.  The applicant consulted with legal counsel, requested consideration of his case by an administrative separation board, requested a personal appearance before an administrative separation board, and he didn’t submit statements in his own behalf.  

7.  The unit commander recommended the applicant be separated from the Army with service characterized as honorable.  The intermediate commander recommended approval with a general under honorable conditions discharge.  

8.  The separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense with issuance of a General Discharge Certificate.  

9.  On 30 March 1992, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 1 year, 10 months, and 2 days of creditable active service.  

10.  His record is void of any evidence showing he was diagnosed with any medical condition at the time of his separation.  

11.  On 18 September 1995, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

12.  Army Regulation 635-200 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 (UOTHC) 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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was misdiagnosed with PTSD and with “Gulf War Syndrome” are acknowledged.  However, his service record is void of medical documentation or other evidence to support his claims.   

2.  His service record shows he received two Article 15s and numerous adverse counseling statements.  

3.  A discharge UOTHC was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that 
the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and appropriately characterized his service as general under honorable conditions.

4.  He has not presented sufficient evidence now which warrants changing his general under honorable conditions discharge to fully honorable.

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)                                         AR20110002596





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ABCMR Record of Proceedings (cont)                                         AR20110002596



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