IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110011833 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 24 (Character of Service) upgrade of his general under honorable conditions discharge to honorable
* item 28 (Narrative Reason for Separation) his narrative reason for discharge of misconduct – commission of a serious offense – be changed to a medical discharge

2.  He states he was diagnosed with post-traumatic stress disorder (PTSD) and drug and alcohol dependency.  He was unaware he had a medical condition known as PTSD or he would have sought help as soon as he returned from the war.

3.  He provides:

* self-authored statement
* letter from the Department of Veterans Affairs (VA) Medical Center, Coatesville, PA
* Request for Sickness or Accident Leave of Absence
* DD Form 214



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 4 December 1984.  He continued to serve on active duty through reenlistments on 22 November 1988 and 22 May 1990.  He served in Southwest Asia from 4 September 1990 to 28 March 1991.

3.  He was promoted to sergeant/E-5 on 1 September 1991.

4.  On 5 January 1992, he tested positive for cocaine.

5.  On 21 January 1992, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine during the period 9 to 23 December 1991.  He was subsequently reduced to specialist/E-4.

6.  On 23 January 1992, the unit commander notified him of the proposed recommendation to discharge him for misconduct for 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.

7.  The applicant consulted with legal counsel, waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and did not submit statements in his own behalf.

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

9.  His service record is void of medical documents or other evidence which indicates he was diagnosed with PTSD and drug or alcohol dependence during his tenure on active duty.

10.  On 9 April 1992, he was discharged in pay grade E-4 for misconduct for commission of a serious offense under the provisions of Army Regulation 
635-200, paragraph 14-12c.  He completed 7 years, 4 months, and 6 days total active military service.

11.  His DD Form 214 shows in:

	a.  item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) he was awarded the Army Achievement Medal, Army Good Conduct Medal (2nd Award), National Defense Service Medal, Southwest Asia Service Medal with two bronze service stars, Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Driver Badge, Army Lapel Button, and Kuwait Liberation Medal-Saudi Arabia;

	b.  item 24 his service was characterized as general under honorable conditions;

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

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

	e.  item 28 the reason for his discharge was misconduct – commission of a serious offense.

12.  He provided a self-authored statement in which he provided the reasons he believed his discharge should be upgraded to honorable.

	a.  Clemency is warranted because it's an injustice for him to continue to suffer the adverse consequences of a bad discharge.

	b.  He was discharged due to one positive drug test and he would not receive this type of discharge under current standards.

	c.  His average conduct and efficiency ratings/behavior and proficiency marks were good or pretty good.

	d.  He received the Army Achievement Medal, Army Good Conduct Medal (2nd Award), National Defense Service Medal, Southwest Asia Service Medal, Army Service Ribbon, Kuwait Liberation Medal-Saudi Arabia, and letters of recommendation.

	e.  He was promoted to E-5 and held this pay grade until he was discharged.  His record of promotions show he was generally a good service member.

	f.  He had combat service in Operation Desert Storm.

	g.  It was unfair to give him a bad discharge because he only had 4 months of service remaining.

	h.  He had two prior honorable discharges.

	i.  He received his certification as an ultrasound technician and has worked in the same job for 15 years.  He has been married for 18 years, has raised 6 children (two biological children and four stepchildren), and he has a clean criminal record.

	j.  His drug use and psychiatric problems impaired his ability to serve.  He began to use drugs when he first returned home from combat in Saudi Arabia as a way to cope with the intense feelings and emotions he was experiencing.  He exhibited the symptoms of PTSD long before he was ever diagnosed with the disorder.

	k.  He couldn't adjust to stateside duty when he returned from overseas.  He had untreated depression and anxiety which lead to constant feelings of irritability and sleeplessness.

	l.  He should have gotten a medical discharge because he was not medically qualified to serve.  The military was not aware of his psychiatric symptoms when he returned from combat.

13.  He provides an undated letter from a psychologist at the VA Medical Center in Coatesville who attested that the applicant was admitted to this facility on 20 July 2010 for treatment of combat-related PTSD related to his service with the 197th Infantry Brigade during the Gulf War from 1990 to 1991.  The psychologist stated the applicant's symptoms seemed to have been exacerbated by the recent diagnosis of his brother with terminal cancer.

14.  He submitted a request for sickness or accident leave of absence which began on 29 June 2010.  This document shows he was an inpatient at the VA Medical Center in Coatesville and had a tentative discharge date of 20 July 2010.

15.  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.

16.  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.

17.  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.

18.  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."

19.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was diagnosed with PTSD and drug and alcohol abuse.  However, his service is void of medical documentation or other evidence which indicates he was diagnosed with these disorders during his tenure on active duty.

2.  His service record is void of any evidence and he did not provide any evidence showing he had any medically-unfitting disabilities which required physical disability processing.

3.  His letter from the VA Medical Center in Coatesville was acknowledged  However, this letter indicated he was diagnosed with PTSD subsequent to his service on active duty.

4.  His service record shows he tested positive for cocaine and received an Article 15 for this offense.  Considering the seriousness of the applicant's offense, it appears his service was appropriately characterized.  Therefore, clemency is not warranted.

5.  Under current standards, a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  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 (general).  He has not presented sufficient evidence which warrants changing his general discharge under honorable conditions to fully honorable.

6.  His DD Form 214 shows he received awards for his performance on active duty; however, these awards alone are not sufficiently mitigating to warrant an upgrade of his discharge.

7.  He has not presented sufficient evidence to show his discharge under Army Regulation 635-200, chapter 14, was in error or unjust or that his discharge should be changed to either an honorable or a medical discharge.

8.  The applicant completed prior honorable service.  However, his service record shows he received an Article 15 for wrongful use of cocaine during the period under review.  Therefore, his prior honorable service is not sufficient to mitigate his misconduct.

9.  His statements in regard to his post-service accomplishments are commendable.  However, these issues alone are not sufficiently mitigating to warrant relief in this case.

10.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on his DD Form 214.

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)                                         AR20110011833



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ABCMR Record of Proceedings (cont)                                         AR20110011833



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