IN THE CASE OF:	  

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110014565 


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 discharge to an honorable discharge, removal of the narrative reason for separation, change of his reentry eligibility (RE) code to allow him to reenter military service, and entitlement to his educational benefits.

2.  He states prior to his deployment to Somalia he was an outstanding Soldier.  After he returned, he began having emotional problems that were diagnosed as battle fatigue (post traumatic stress disorder (PTSD)).  As a result of his ensuing behavior he was discharged with no prospects for a future until he received the proper treatment.

3.  He provides:

* a self-authored document, titled "Unjustified Discharge," dated 4 July 2011
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Standard Form (SF) 558 (Emergency Care and Treatment Record), dated 16 September 1993
* an SF 600 (Health Record - Chronological Record of Medical Care), dated 16 September 1993
* Orders 293-00273, issued by Headquarters, 10th Mountain Division, Fort Drum, NY, dated 25 October 1993


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 (RA) on 16 October 1991.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  His record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting counseling sessions from 
27 February 1992 to 15 July 1993 for continuous misconduct, unsatisfactory performance, and pay problems.

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 20 September 1992, for failing to obey a lawful command issued by a commissioned officer by consuming alcoholic beverages during deployment to Florida on 15 September 1992
* 7 July 1993, for wrongfully possessing a certain amount of marijuana on
7 June 1993
* 10 September 1993, for assaulting a noncommissioned officer (NCO) on 10 September 1993

5.  He submitted an SF 558 that indicated he was seen for psychiatric (emotional) problems after he returned from Somalia because he wanted to hurt himself or others.

6.  He submitted an SF 600 that shows he was referred to the community mental health clinic for battle fatigue.


7.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 14 October 1993.  The Chief, Department of Mental Health Services and the Behavioral Science specialist determined he was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He was diagnosed with an adjustment disorder with mixed emotional features and he was found to be capable of appreciating the nature of his conduct and of confirming to the requirements of law.  He was able to understand and participate in administrative proceedings.  He was cleared for actions deemed appropriate to include consideration for administrative separation

8.  On 20 October 1993, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-12b, for patterns of misconduct.

9.  On 20 October 1993:

	a.  He acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

	b.  His company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b) for a pattern of misconduct, with a general discharge.  The commander also recommended waiver of the rehabilitative requirements.

	c.  His intermediate commander recommended approval of the discharge
action.

10.  On 21 October 1993, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed the issuance of a General Discharge Certificate.

11.  On 10 November 1993, he was discharged accordingly.  The DD Form 214 he was issued at the time shows in:

* item 12c (Net Active Service this Period) he completed 2 years and 25 days of creditable active service


* item item 24 (Character of Service) the entry "under honorable conditions" indicating a general discharge
* item 25 (Separation Authority) the entry "Army Regulation 635-200, paragraph 14-12c"
* item 26 (Separation Code) the entry "JKA"
* Item 27 (RE Code) the entry "RE-3"
* item 28 (Narrative Reason for Separation) the entry "misconduct"

12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  He submitted a self-authored statement indicating:

	a.  He enlisted in the RA for 2 years and 16 weeks, he was awarded MOS 11B, and he assigned to the 10th Mountain Division, Fort Drum

	b.  He always worked at being the best in his unit as evident by his physical fitness and weapon qualification scores.

	c.  While deployed to Somalia in 1993, he was awarded the Armed Forces Expeditionary Medal, Combat Infantryman Badge, and a Presidential Unit Citation.

	d.  Shortly after returning from Somalia, he began suffering from a lack of sleep and uncontrollable bouts of anger, rage, and nightmares that he attempted to control by self-medicating with alcohol.

	e.  On 16 September 1993, after acting out towards an NCO, he was taken to the emergency room and diagnosed with battle fatigue/PTSD.  No treatment plan was identified; he was put on a medical profile, restricted to the barracks, and treated like he had the plague.

	f.  Within a month of his diagnosis, he was discharged, reduced to private (PV2)/E2, told to keep his mouth closed, and accepted the discharge rather than face a court-martial for insubordination.

	g.  He requested advanced pay to move his family, but it was denied.

	h.  He was told by a sergeant first class (SFC)/E-7 to enlist for another unit but his platoon sergeant told him it would be blocked and being 20 years old, he was not about to challenge this ultimatum.  As a result, he was discharged.


	i.  He returned to Arizona, stripped of his education benefits.  He had no marketable job skill and his general, under honorable conditions discharge disqualified him from seeking jobs in law enforcement.

	j.  he lived with the rage, anger, PTSD, and fatigue for almost 20 years, and  when he applied for assistance from the Department of Veterans Affairs, they denied his case.

	k.  He attained a degree in electronics and worked for several large companies but had problems due to his “demons.”

	l.  He was arrested on numerous occasions and served time in prison for assaulting a police officer.

	m.  He sought help over the years from various mental health professionals but usually ended up being over-medicated.  It was not until he had an anxiety attack and he was treated by a retired Naval physician who told him the military was the root of his problems.  She referred him to a psychiatrist who is working with him using medication and therapy.

	n.  He is requesting that a serious look be taken at the circumstances surrounding his discharge, upgrade of his general discharge to an honorable discharge, and entitlement to his educational benefits.

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, conviction by civil authorities, desertion, or absence without leave.  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 considered appropriate.

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 (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 cross-referenced in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes).

17.  Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code of "JKA" was the appropriate code to assign to Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct.  The SPD/RE code Cross Reference Table stipulates that an RE-3 will be assigned to members separated under these provisions with an SPD code of "JKA."

18.  Pertinent Army regulations provide 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.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes:

	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.  Prior to 28 February 1995, RE-2 applied to Soldiers who were separated for the convenience of the Government in accordance with Army Regulation
635-200, chapters 5 and reenlistment was not contemplated.  They were fully qualified for enlistment/reenlistment if all other criteria were met.  However, on
28 February 1995 Army Regulation 635-200 was revised effecting the discontinued use of RE-2.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded, his narrative reason for separation should be removed, his RE code should be changed, and that he should be entitled to his educational benefits was found to lack merit.
2.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

3.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct with a general, under honorable conditions discharge.  His misconduct started in 1992, before he deployed to Somalia.

4.  It appears his separation processing was accomplished in accordance with the applicable regulation.  He was recommended for separation based on his record of violation of the UCMJ, including assaulting an NCO, possessing marijuana, and disobeying a lawful command from a commissioned officer.

5.  His separation processing, to include the SPD and RE code assignments, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

6.  By regulation the applicant's assigned SPD code of "JKA" and RE-3 code are the proper codes to assign members separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct.  Therefore, there is no basis for changing either of these codes.

7.  Additionally, the granting of veteran's education benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs.

8.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

9.  The applicant is advised that RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however it does allow for a waiver of disqualification.  Therefore, if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process RE code waivers.


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)                                         AR20110014565



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1