BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120004505 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge or a medical discharge.

2.  The applicant states:

* he enlisted at the age of 17 to fulfill his desire to be a paratrooper
* he had already served an honorable period of service and was on his reenlistment tour when he was discharged
* he served in Grenada, Honduras, and Panama 
* he completed Recondo School while holding the grade of E-3 rather than the norm of an E-4 or E-5, Jungle School, and the Noncommissioned Officer Academy
* in 1986, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for not being able to be in two place at once and was reduced to E-4 
* he was constantly denied leave, denied reenlistment incentives, and denied a transfer when he was promoted to E-5
* he spent more time in the field than anyone else in his unit
* he was discharged after leaving the mental ward of Womack Hospital at Fort Bragg, NC

3.  The applicant provides:


* self-authored statements
* Honorable Discharge Certificate
* 13 certificates of training
 
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 8 November 1982.  He completed training and was awarded military occupational specialty 55B (Ammunition Specialist).  The highest rank/grade he attained while on active duty was sergeant/E-5.

3.  A DA Form 2496 (Disposition Form), dated 24 March 1986, shows the applicant was dropped from the Air Movement Operations (AMO) Course for missing class time.

4.  A DA Form 4856-R (General Counseling Form), dated 27 March 1986, shows the applicant was counseled by his first sergeant (1SG) for the following:

* non-completion of the AMO Course
* failure to return to his unit upon dismissal from the AMO Course making him absent without leave (AWOL) for 4 days
* poor behavior as a leader

5.  The 1SG informed him he would recommend NJP for his AWOL.

6.  On 14 April 1986, the applicant received NJP under the provisions of Article 15 of the UCMJ for being AWOL during the period 24 March 1986 until on or about 27 March 1986.  His punishment was reduction from E-5 to E-4, forfeiture of $441.00 pay per month for 2 months, and 45 days of extra duty.

7.  In an appeal to his 14 April 1986 NJP, the applicant admitted to being AWOL.  He further stated he was trying to assist another Soldier with marital problems.  The imposing authority denied the applicant's appeal.  

8.  On 19 June 1986, the applicant received a second NJP for, on or about 11 June 1986, failing to go at the time prescribed to his appointed place of duty.  His punishment was reduction from E-4 to E-3, forfeiture of $190.00 pay per month for 1 month, and 14 days of restriction and extra duty.  He did not appeal.

9.  DA Forms 4856 show that although the applicant had been counseled verbally on numerous occasions, he was formally counseled for failure to be present for formation on the following days:

* on 12 May 1986 
* on 10 June 1986 with a recommendation for NJP 
* on 11 June 1986 with a recommendation for NJP
* on 23 July 1986 with a recommendation for NJP and discharge
* on 22 August 1986 with a recommendation for NJP, bar to reenlistment, and discharge

10.  Records also show the applicant received additional monthly counseling in June and July 1986.  He was advised that he needed to improve in all of the following areas and his standards in these areas were unsatisfactory:

* tardiness
* haircut/uniform/appearance
* teamwork in section
* demonstrated leadership
* job performance/finance
* cleanliness of dorm
* maintenance of clothing
* support of unit functions
* loyalty to noncommissioned officers and officers
* use of chain of command
* setting the example

11.  On 8 July 1986, the applicant was counseled for the following:

* breaking restriction and going out of town
* missing formation

12.  On 13 August 1986, the applicant was counseled on his poor performance and advised that he was subject to discharge.  

13.  Item 27 (Remarks) of the applicant's DA Form 2-1 (Personnel Qualification Record) and a DA Form 4187 show that on 16 December 1986, he was cited for failure to appear in court by the Cumberland County Sheriff, Fayetteville, NC.  He was convicted and sentenced to 28 days confinement.  He was released by civil authorities on 13 January 1987.
 
14.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 27 January 1987, shows his commander recommended that he be barred from reenlistment in the U.S. Army due to receipt of NJP on two occasions and multiple counselings for missed formations, unsatisfactory standards, and breaking restriction.  The applicant acknowledged receipt of his commander's recommendation, acknowledged he had been counseled and advised of the basis for the action, and indicated he did not desire to submit a statement in his own behalf.  The form does not show whether or not the bar to reenlistment was approved or disapproved.  The commander authenticated the form on 2 February 1987.

15.  On 16 February 1987, the applicant was placed in an AWOL status.  He was dropped from the rolls (DFR) on 18 March 1987. 

16.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 March 1987, shows the applicant "took an overdose of pills in a suicide attempt."

17.  A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 23 March 1987, shows that on 11 February 1987, the applicant:

* was admitted to Womack Army Hospital and stated he "drank a
6-pack of beer and had taken Motrin and Atarax"
* his blood test revealed that he consumed less than 7 milligrams (mg) of Tylenol and 42mg of ethanol
* his ethanol level could be converted to blood-alcohol count of .042 or  one-half of the driving while intoxicated level
* there was evidence of ethanol abuse and that the applicant suffered from a borderline personality disorder
* the evidence hardly constituted a suicide attempt and his DA Form 2173 was in direct conflict with the results of his medical examination
* his findings were "in the line of duty" 



18.  On 26 May 1987, the applicant turned himself in to his first sergeant.

19.  On 8 June 1987, charges were preferred against the applicant for the following:

* failure to go to his appointed place of duty at the prescribed time on or about 19 January 1987
* failure to go to his appointed place of duty at the prescribed time on or about 22 January 1987
* AWOL on or about 16 February 1987 until on or about 26 May 1987

20.  On 8 June 1987, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Enlisted Separations).  In his request for discharge, the applicant acknowledged that he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood that if his request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

21.  On 6 July 1987, the separation authority approved the applicant's request and directed he be given an under other than honorable conditions discharge.

22.  On 2 July 1987, the applicant was discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation     635-200, chapter 10, in lieu of court-martial with a UOTHC discharge.  The applicant completed a total of 4 years, 7 months, and 25 days of creditable active military service.  He also had 127 days of lost time.

23.  The record is void of evidence showing the applicant was found unfit for continued service or was processed through the U.S. Army Physical Disability Agency.

24.  The applicant provides self-authored statements attesting to his time in the Army and certificates of training.



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

26.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

27.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.	Paragraph 3-7a states 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 states 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 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for his UOTHC discharge to be upgraded to a general under honorable conditions discharge or a medical discharge was carefully considered and determined to be without merit.

2.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and requests for discharge in lieu of trial by court-martial are voluntary requests.  As such, government regularity insofar as the discharge process must be presumed.  Therefore, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.

4.  His record is void of evidence he was found unfit or referred to a medical evaluation board or that he was unable to perform his duties.  Therefore, his request for a medical discharge is without merit.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

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)                                         AR20120004505



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ABCMR Record of Proceedings (cont)                                         AR20120004505



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