IN THE CASE OF:	   

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009937 


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 honorable
* his narrative reason for discharge be changed from "misconduct – commission of a serious offense" to "for the convenience of the government"
* his reentry eligibility (RE) code be upgraded from RE-3 and RE-3C to 
RE-1
* his separation code of "JKQ" (misconduct – commission of a serious offense) be changed

2.  He states he had issues when he was in the service.  He was later diagnosed with post-traumatic stress disorder (PTSD), depression, anxiety, attention deficit hyperactivity disorder (ADHD), and bipolar disorder after his military service.

3.  He provides:

* Massachusetts Department of Transitional Assistance, Emergency Aid to Elders Disabled and Children Medical Report
* 28-Day Post-Detoxification Enhanced Structured Out-Patient Addiction Program Clinical Assessment
* Stabilization Substance Abuse Treatment Program memorandum



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 2 June 1987 for a period of 4 years.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three separate occasions for:

	a.  wrongfully consuming an alcoholic beverage while being under the age of 21 and stealing property from the Schofield Main Post Exchange of a value of about $119.75;

	b.  losing his binoculars and protective mask of some value, the military property of the United States, and sleeping on his post; and

	c.  wrongfully consuming alcoholic beverages while being under the age of 21, being incapacitated for the proper performance of his duties, and breaking restriction.

4.  He received numerous adverse counselings for failing to follow instructions, failing to repair, being absent from his appointed place of duty, failing to obey a lawful order, being found to be under the influence of alcohol during duty hours, sleeping while on duty, personal appearance, failing room inspection, having an unsecure wall locker, performance, and individual responsibilities.

5.  His service record shows he was barred from reenlistment on 29 January 1988 for receipt of an Article 15 for wrongfully consuming an alcoholic beverage, shoplifting, and adverse counseling statements.

6.  He underwent a separation physical on 12 May 1988.  His Standard Form 88 (Report of Medical Examination) shows he received a physical profile serial of 111111 and was qualified for separation.

7.  On 2 June 1988, the unit commander notified him of the proposed recommendation to discharge him for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  He was advised of his rights.

8.  The applicant acknowledged notification of the pending separation action, consulted with legal counsel, and submitted a statement in his own behalf.  He requested that the chain of command consider a rehabilitative transfer in his case in accordance with Army Regulation 635-200, paragraph 1-18.

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

10.  On 23 June 1988, he was discharged for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 1 year and 22 days of creditable active service.

11.  His DD Form 214 shows the following:

	a.  in item 25 (Separation Authority) he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c; 

	b.  in item 26 (Separation Code) he was assigned the separation designator code (SPD) of "JKQ"; 

	c.  in item 27 (Reenlistment Code) he was assigned RE codes of "3" and "3C"; and

	d.  in item 28 (Narrative Reason for Separation) the reason for his discharge was misconduct – commission of a serious offense.

12.  He provides the following documents:

	a.  a clinical assessment in which he indicated his mental health issues as PTSD, depression, anxiety, and medical issues of neck and back pain;

	b.  a clinical summary which indicated he was diagnosed with poly-substance dependence, substance-induced PTSD at axis I; back pain and neck pain at axis II; and problems with primary supports, social environment, legal housing, and other at axis IV;

	c.  an EAEDC Medical Report that shows he underwent a medical assessment on 16 February 2011.  The medical authority indicated the applicant had a physical, mental health, or cognitive impairment(s) that affected his ability to work and the impairments were expected to last more than a year; and

	d.  a letter from a clinician/case manager, dated 25 February 2001, which indicated the applicant was in treatment for an addictions disorder in which he successfully completed the first phase of treatment.

13.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

15.  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.

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation shows the SPD code "JKQ" as shown on the applicant's DD Form 214 specified the narrative reason for separation as involuntary release or transfer for "misconduct" and the authority for separation under this SPD is "chapter 14-12c, Army Regulation 635-200."

17.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.

	a.  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

	c.  RE-3C applies to Soldiers who have completed over 4 months of service who do not meet the basic eligibility pay-grade requirements of Army Regulation 601-280 (Army Retention Program), chapter 2.  They are ineligible for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record shows he received three Article 15's, numerous adverse counseling statements, and a bar to reenlistment.

2.  It appears the separation authority determined 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 characterized his service as under honorable conditions.  A discharge under other than honorable conditions is normally issued to a Soldier discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  His service record shows he was assigned the appropriate SPD and RE codes commensurate with the authority and narrative reasons for his separation.

4.  He contends he was later diagnosed with PTSD, depression, anxiety, ADHD, and bipolar disorder after his military service.  His service record is void of evidence which indicates these conditions existed while he was serving on active duty.  His medical documents show that prior to his discharge in June 1988, a competent medical authority determined he was medically qualified for separation with a physical profile serial of 111111.

5.  He has not presented sufficient evidence which warrants changing his general discharge under honorable conditions to fully honorable.  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 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)                                         AR20110009937



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ABCMR Record of Proceedings (cont)                                         AR20110009937



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