IN THE CASE OF:	  

		BOARD DATE:  20 March 2012

		DOCKET NUMBER:  AR20110019155


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 uncharacterized discharge to an honorable discharge
* restoration of his rank and grade to specialist/E-4
* reimbursement of pay previously forfeited following the imposition of nonjudicial punishment (NJP)

2.  The applicant states:

* the Department of Veterans Affairs (VA) granted him total disability for service-related schizoaffective disorder
* his past behavior, that resulted in his discharge from the Army for misconduct, resulted from his mental illness

3.  The applicant provides two separate VA rating decisions, dated 22 July 2010 and 14 March 2011.

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 15 May 1986.  He completed training and was awarded military occupational specialty 29S (Field Communications Security (COMSEC) Equipment Repairer).  On 10 May 1990, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).

3.  On 15 April 1992, he enlisted in the Maryland Army National Guard (MDARNG), and was later assigned to the Virginia Army National Guard (VAARNG).  On 14 April 1994, he was honorably discharged from the VAARNG, after the completion of 2 years of net service.

4.  On 27 October 1994, he enlisted in the Regular Army and entered active duty at Fort Gordon, GA.

5.  On 3 December 1994, he received NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful command on 22 November 1994, and for wrongfully showing undue attention (harassment) to another Soldier on 26 November 1994.  As part of his punishment, he was reduced in rank/grade to private first class/E-3, and was ordered to forfeit $200.00 pay per month for one month (suspended for six months).

6.  On 2 February 1995, he received NJP under the provisions of Article 15, UCMJ, for the following offenses:

* willfully disobeying a lawful command on 25 January 1995
* willfully disobeying a lawful command on 28 January 1995
* failure to obey a lawful order on 27 January 1995
* failure to go, at the prescribed time, to his appointed place of duty on        2 February 1995

As part of his punishment, he was reduced in rank/grade to private/E-2, and was ordered to forfeit $478.00 pay per month for two months.

7.  The applicant's discharge packet is not available for review; however, his record contains a properly-constituted DD Form 214 that shows he was discharged on 3 March 1995, in the rank/grade of private/E-2, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, by reason of misconduct.  His DD Form 214 further shows he completed 4 months and 7 days of net active service during this period of enlistment, and his characterization of service was "uncharacterized."  

8.  His service medical records were not available for review.  There is no documentation in the available record, nor has he provided any documentation, that shows he was treated for any mental illness or injury that might be attributed to his period of active service, or that was of the severity to warrant his entry into the Physical Disability Evaluation System (PDES).

9.  On 16 January 2009, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  He provides two separate VA rating decisions, dated 22 July 2010 and         14 March 2011, which show he was granted a 70-percent overall disability rating for schizoaffective disorder.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  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.

	b.  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 honorable discharge.

	c.  Chapter 14 establishes policy and prescribes procedures for separating Soldiers 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 Soldier 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.  The separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  A general court-martial convening authority may approve, or delegate approval authority for, an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to change the character of his discharge from uncharacterized to honorable was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record shows he accepted NJP for at least two separate instances of misconduct.  

3.  In the absence of evidence to the contrary, it should be presumed his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

4.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, paragraph    14-12b, due to misconduct.  The underlying reason for his discharge was misconduct.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The only valid narrative reason for separation permitted under this paragraph is "misconduct." 

5.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

6.  The applicant contends his misconduct resulted from his mental illness; however, the evidence of record does not support this contention.  His medical records were not available for review, and his available record contains no documentation that shows he suffered from mental illness or injury while on active duty.  Absent such evidence, there is no evidence that shows he suffered from a mental condition severe enough to warrant entry into the PDES.

7.  Notwithstanding the VA psychiatrist's opinion - albeit more than 15 years after the applicant had been discharged from the Army - the opinion does not show how the correlation between the applicant's misconduct and his mental status had been reached. There is no evidence the applicant was diagnosed with a mental condition during his military service or that his pattern of misconduct was caused by a mental condition.

8.  In view of the foregoing evidence, there is an insufficient basis to grant relief in this case.
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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110019155



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