IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110025114 


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 honorable.

2.  The applicant states:

* as a 32-year old Sunni Muslim he thought it was his duty and religious obligation to protect Saudi Arabia and the city of Mecca from Saddam Hussein
* although he enlisted as a private first class with college credit, he was involuntarily transferred from military occupational specialty (MOS) 91V (respiratory therapist) to 91B (medical specialist)
* while completing the 91B training he was class sergeant and squad leader
* he took a special test to become a battalion emergency medical technician
* he also took the test for the Expert Field Medical Badge and failed only the night vision test
* when he arrived at his permanent duty station his problems as a Soldier really began, his MOS should have been changed to 91V and his rank changed to specialist – neither ever happened
* none of his several sergeants would help him – he thought this was because of his name, race, and/or religion
* the civilian director of respiratory therapy at Fort Leonard Wood, MO, was his only supporter – he, the civilian director, and another Soldier worked part time in St. Louis on the weekends – they would share a hotel room 
* he was married, had three children living on post, and still had money problems because he was not granted the proper MOS or promoted
* his wife decided to leave him – they were disturbed on their honeymoon by the military police and ordered back to Fort Leonard Wood because of a hospital staffing emergency
* after that his attitude about the military changed and he became very bitter – he wanted to get out because of the way he was treated – he was used and humiliated
* he lost his wife and children, his GI Bill, and his instructor position at the Rolla School of Respiratory Therapy
* he was barred from reenlistment and "chaptered out" with a general discharge

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 17 June 1991, the applicant received a moral waiver for three instances of passing bad checks and enlisted in the Regular Army in pay grade E-3 for 4 years and training in MOS 91A (medical specialist).  He completed training at Fort Sam Houston, TX, and was awarded MOS 91A on 13 November 1991.

3.  On 15 October 1992, the applicant was arrested on post for driving while intoxicated.  On 19 January 1993, he was stopped for driving on post with his driving privileges suspended/revoked.

4.  He also received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice:

	a.  on 8 February 1993, for failure to obey an order and was reduced to pay grade E-2;

	b.  on 22 March 1993, for using cocaine and was reduced to pay grade E-1; and

	c.  on 25 March 1993, for stealing $353.50 worth of travelers checks from the Post Exchange and was reduced to pay grade E-2 (suspended until 25 May).

5.  The company commander notified the applicant of his contemplated separation with a general discharge under honorable conditions due to misconduct.

6.  The applicant acknowledged the notification and consulted with counsel who advised him of his rights.  The applicant indicated he understood he might encounter substantial prejudice in civilian life as a result of a less than fully honorable discharge and he might be ineligible for some veterans' benefits under Federal and state laws.

7.  The company commander recommended a general discharge under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c(2).  The chain of command concurred and the separation authority directed the issuance of a general discharge.

8.  On 28 June 1993, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 14, for misconduct by abuse of illegal drugs.  He completed 2 years and 12 days of creditable service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  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 a pattern of misconduct by commission of a serious offense, including abuse of illegal drugs.  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 for a Soldier discharged under this chapter.  

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records to demonstrate that the applicant was the victim of any prejudice.  

2.  In any event, the applicant’s contentions concerning how he was treated do not appear to excuse misconduct that included driving while intoxicated, use of cocaine, and theft.

3.  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.

4.  The reason for his discharge was appropriate.  However, in view of the applicant's numerous disciplinary infractions, it appears that the general discharge was quite lenient.

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)                                         AR20110025114



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ABCMR Record of Proceedings (cont)                                         AR20110025114



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