IN THE CASE OF:	  

		BOARD DATE:  12 January 2012

		DOCKET NUMBER:  AR20110013770 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be changed to a physical disability separation.

2.  He states the type of discharge he received does not fit who he is.  He realizes his prior actions were wrong; however, he has not been in any trouble in the past 25 years.   

3.  He contends he had an approved medical discharge and was due to separate in February 1986 as indicated in his military medical records.  He never received any orders and his medical separation was delayed by almost 10 months and he was eventually separated under the provisions of chapter 14-12b of Army Regulation 635-200 (Enlisted Personnel – Personnel Separations).

4.  He provides:

* A line of duty (LOD) determination document
* A copy of his Physical Evaluation Board (PEB) proceedings
* An Army National Guard (ARNG) Honorable Discharge (HD) certificate 

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.  His record shows enlisted in the Regular Army on 15 September 1983.  After the completion of training, he served in military occupational specialty 76C (Equipment Records and Parts Specialist). 

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows, in
item 9 (Awards, Decorations & Campaigns) he earned the Army Service Ribbon.  Item 18 (Appointments and Reductions) of this form shows private first class/E-3 was the highest rank he attained while serving on active duty.  It also shows he was reduced to the rank of private/E-2 and later reduced to private/E-1.

4.  His record documents no specific acts of valor, significant achievement, or service warranting special recognition.   

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows he dislocated his left knee on 20 October 1985 while playing Hacky Sack in the post gym.  His injury was determined to be in the LOD. 

6.  On 5 February 1986, he was evaluated by a PEB which found him unfit for retention due to severe patella femoral dislocation of the left knee, with a chondral fracture.  The board recommended he be given 30% disability and placement on the Temporary Disability Retired List (TRDL) with reexamination in August 1987.

7.  His record contains several General Counseling Forms and DA Forms 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice) which show between 3 July 1984 and 24 June 1986 he was either counseled or received nonjudicial (NJP) for the following offenses:

* Failure to pay a bill
* Failure to be at his appointed place of duty on three separate dates
* Going absent without leave (AWOL) on two occasions
* Use of marijuana between 29 September and 8 October 1985 and again between 7 and 16 May 1986 

8.  On 8 July 1986, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The unit commander stated the applicant had demonstrated a behavioral pattern which was inconsistent with continued successful service.  The applicant’s lackadaisical attitude toward duty performance reinforced his unwillingness to conform to military standards.  He also cited the applicant’s receipt of NJP for AWOL and drug use. 

9.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel he completed an election of rights in which he requested consideration of his case by a board of officers, personal appearance before a board of officers, and consulting counsel.  He also elected not to submit statements in his own behalf.  

10.  On 1 October 1986, a board of officers convened to consider the applicant's elimination, with the applicant and his counsel present.  

11.  On 3 October 1986, after carefully considering all the evidence, the board found that the applicant did, by a preponderance of the evidence, demonstrate a pattern of misconduct.  Based on these findings, the board of officers recommended he be discharged with a UOTHC discharge.  

12.  On 3 October 1986, the separation authority approved the findings and recommendations of the board of officers in the applicant's case, and directed that the applicant be discharged under the provisions of paragraph 14-12d, Army Regulation 635-200 with a UOTHC discharge.  Accordingly, he was discharged on 6 October 1986. 

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of paragraph 14-12c of Army Regulation 635-200, by reason of misconduct-drug abuse.  He had completed 
2 years, 11 months, and 29 days of net active service and had 23 days of lost time due to AWOL.  

14.  He provided a copy of an HD certificate which shows he was honorably discharged from the Mississippi ARNG on 20 June 2004. 

15.  His record shows he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  After careful consideration of his case, the ADRB changed item 25 (Separation Authority) of his DD Form 214 to show “Paragraph 14-12b, Army Regulation 635-200” and item 28 (Narrative Reason for Separation) was changed to show “Misconduct – A pattern of misconduct” of his DD Form 214.  Accordingly, he was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty). 

16.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted Soldier on whom elimination action has been started, which may result in a UOTHC discharge may not be processed or continue physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority may authorize physical disability processing based only on finding that the disability was the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.  This authority may not be delegated.  

17.  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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or AWOL.  Action would be taken to separate a member for misconduct when it is clearly established that rehabilitation was impracticable or was unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The contentions made by the applicant have been noted.  However, they are not substantiated by the evidence of record.  The evidence of record shows he appeared before a board of officers, was represented by counsel, and the board considered his entire military record.  

4.  He was not denied due process.  He was discharged UOTHC for commission of a serious offense and in accordance with the applicable regulation.  The fact that he was evaluated by a PEB and recommended to be placed on the TDRL with a 30% disability rating does not negate the fact that he was administered NJP for illegal drug use on two separate occasions.  He committed one of the offenses subsequent to the PEB findings and recommendations.  

5.  The regulatory guidance states that an enlisted Soldier on whom elimination action has been started, which may result in a UOTHC discharge, may not continue processing under the physical disability guidelines.   

6.  As a result, he is not entitled to the 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 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)                                         AR20110013770





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ABCMR Record of Proceedings (cont)                                         AR20110013770



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