IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120001483 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

	a.  He was initially trained as a clerk typist and he protested because he wanted to go to heavy equipment operation school; therefore, he was assigned to the 501st Supply and Transportation Company where he learned to operate heavy equipment.  

	b.  He describes an incident in the motor pool where a second lieutenant disregarded safety procedures resulting in a tire blowing up and decapitating him. Following this incident, his attitude changed, and he started having nightmares, drinking, and using drugs.  

	c.  He was a young man trying to cope with a terrible tragedy without help.  After that period of service he cleaned himself up and obtained a waiver to join the Army National Guard (ARNG).  He received an honorable discharge in 1977 and in 1998.

	d.  He obtained a position as a security officer with the Department of Veterans Affairs (VA) and was medically retired due to a job-related low back injury and post-traumatic stress disorder (PTSD).  He is currently being treated by the VA for depression, anxiety, and PTSD.  

3.  The applicant provides copies of a personal history, one page of a DA Form 2-1 (Personnel Qualification Record - Part II), a 1972 DD Form 214 (Report of Transfer or Discharge), two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service), and a 1 December 1989 Oregon ARNG discharge order.

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) with parental consent on 29 January 1970.  His record shows he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist); however, several documents show he was qualified as and worked primarily as a heavy truck driver. 

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  3 October 1970, for dereliction of duty resulting in a vehicle accident;

	b.  12 March 1971, for failure to obey a general regulation by failing to stop at a stop sign; and 

	c.  7 September 1971, for being absent from his place of duty for 1 day.

4.  On 16 May 1971, the applicant received a bar to reenlistment.

5.  On 28 September 1971, a special court-martial found the applicant guilty of disobeying a lawful order from a noncommissioned officer (NCO) and being disrespectful in language towards an NCO.  His sentence included reduction from specialist four/E-4 to private/E-1.

6.  On 23 May 1972, his command initiated separation proceedings against him under Army Regulation 600-200, chapter 4 (Qualitative Management Program (QMP)) for failure to demonstrate adequate potential for promotion.

7.  The recommendation was approved and the applicant was separated with a general discharge on 16 June 1972.  His DD Form 214 shows an MOS of 76P and completion of the Stock Control and Accounting course.  The separation authority is shown as Army Regulation 635-200, paragraph 5-33, due to failure to demonstrate adequate potential for promotional advancement.

8.  Subsequent to his RA discharge the applicant enlisted in the ARNG, receiving his last honorable discharge on 1 April 1996. 

9.  The applicant's service medical and dental records are believed to be on permanent loan to the VA and are not available for review.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 4 at the time, set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified Soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service.  Therefore, all enlisted personnel must establish their eligibility to remain in the Army by continually demonstrating their efficiency and developing their potential for further service.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states a general discharge is a separation under honorable conditions and it is issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 5-33, then in effect, provided for early separation of personnel denied reenlistment under the QMP.  Specifically, an individual who was not eligible to reenlist upon the expiration of term of service (ETS) because of the provisions of chapter 4 of Army Regulation 600-200 could be separated prior to ETS notwithstanding any existing service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The incident the applicant described is unfortunate.  However, other than the applicant's personal statement, the available record contains no documentation of the incident the applicant describes as the "cause" of his misbehavior that resulted in his discharge action.  

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s admission of drug and alcohol problems and the positive actions he has taken to overcome these problems is noted; however, these actions are not so exceptionally meritorious as to outweigh the offenses that led to his discharge action.  

4.  The applicant is also commended for his post-service employment and additional honorable military service in the ARNG.  However, these actions are insufficient to upgrade his RA general discharge.

5.  In the absence of evidence to demonstrate the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not tell right from wrong and adhere to the right the PTSD issue is not sufficient to demonstrate an error or an injustice in the discharge action.

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)                                         AR20120001483



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ABCMR Record of Proceedings (cont)                                         AR20120001483



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