BOARD DATE:	   17 January 2012

		DOCKET NUMBER:  AR20110013744 


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 (GD) to an honorable discharge (HD).

2.  He states, in effect, he was unaware of the condition he was suffering from during the last few months of his service.  He was separated due to minor disciplinary infractions.  However, during his last few months of service, he was dealing with undiagnosed, untreated post-traumatic stress disorder (PTSD) after returning from the Gulf War.  In 2004, he was diagnosed by the Department of Veterans Affairs (VA) and treated for his conditions.  He remains in treatment.  

3.  He provides a VA letter verifying his VA service-connected disability rating.

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 May 1990.  After completing initial entry training, he was awarded military occupational specialty 13P (Multiple Launch Rocket System Operations/Fire Direction Specialist).

3.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he served in Saudi Arabia from 5 October 1990 through 6 April 1991.  Item 9 (Awards, Decorations & Campaigns) shows, in part, he was awarded the Kuwait Liberation Medal (Saudi Arabia), Southwest Asia Service Medal with two bronze service stars, and served in two campaigns:  Defense of Saudi Arabia and Liberation and Defense of Kuwait.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on three occasions:

   a.  On 5 June 1991, for signing, on or about 1 April 1991, with intent to deceive, a DA Form 428 (Application for Identification Card) bearing an incorrect birth date which was known by him to be false.  His punishment was reduction to private/E-2 and forfeiture of $190 (suspended and automatically remitted if not vacated before 2 September 1991), 14 days of extra duty, and 14 days of restriction.

   b.  On 10 December 1991, for failing to go at the prescribed time to his appointed place of duty on 23 and 27 November 1991.  His punishment was a forfeiture of $197 pay and 14 days of extra duty and restriction.

   c.  On 26 December 1991, for failing to go at the prescribed time to his appointed place of duty on 23 December 1991.  His punishment was reduction to private/E-1, a forfeiture of $175, and 14 days of extra duty and restriction.  His punishment was suspended and would be automatically remitted if not vacated before 24 April 1992.
   
5.  On 5 March 1992, the suspension of the punishment imposed on 26 December 1991 was vacated based on his failure to be at his appointed place of duty at the time prescribed on 2 March 1992.

6.  His record shows he acknowledged counseling on:

* 19 June 1991, for being late for a movement formation
* 31 July 1991, for failing to show up for an accountability formation
* 1 August 1991, for being late for a physical training formation
* 27 September 1991, for passing bad checks
* 5 December 1991, for failure to report for accountability and failure to appear at formation
* 17 January 1992, for his history of unsatisfactory conduct and was informed that continued misconduct could result in initiation of action to eliminate him from the Army
* 27 February 1992, for failing to be at his appointed place of duty and willful disobedience of a lawful order
* 2 March 1992, for failure to go to his appointed place of duty

7.  His record includes a memorandum, subject: Suspension of Check Cashing Privileges (4TH OFFENSE), bearing a suspense date of 4 November 1991, informing him his check cashing privileges were suspended indefinitely because he had written four dishonored checks.

8.  On 4 March 1992, his commander informed him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 14-12a, for a pattern of minor disciplinary infractions.  His commander informed him he was recommending he receive a GD.

9.  On 8 March 1992, he was advised by counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a GD was issued to him.  

10.  On 15 March 1992, the separation authority approved his separation action and directed the issuance a GD.  On 20 March 1992, he was discharged accordingly.  He completed 1 year, 10 months, and 19 days of net active service.

11.  The applicant's record is void of documentation showing he received a diagnosis of PTSD or reported symptoms of PTSD during his Army service.

12.  He provides a VA letter showing he received a 30 percent service-connected disability rating for PTSD effective 1 March 2004.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  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.  
   
   b.  Paragraph 3-7a provides that an HD 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.

   c.  Paragraph 3-7b 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 HD.  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 evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  

2.  He received NJP on three occasions, and the suspension of the punishment imposed by his third NJP was vacated due to additional misconduct.  He was also counseled on several occasions for misconduct that included repeated instances of failing to appear at formations, passing bad checks, disobedience of a lawful order, and failure to go to his appointed place of duty.  There is no evidence showing he had PTSD at the time or that his misconduct was caused by PTSD.

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.





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)                                         AR20110013744



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ABCMR Record of Proceedings (cont)                                         AR20110013744



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