IN THE CASE OF:  

		BOARD DATE:	    13 November 2012

		DOCKET NUMBER:  AR20120009052 


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 a medical discharge, an upgrade of his character of service to honorable, and reinstatement of his rank and pay.

2.  He states he received a traumatic brain injury (TBI) when he was beaten and almost killed during an on-base mugging.  The TBI and post-traumatic stress disorder (PTSD) that resulted from this event were undiagnosed for years.  All of his problems happened after the incident on 13 September 1991.  He was a model Soldier with an honorable discharge (HD) from the U.S. Marine Corps (USMC) and he was on the list for promotion to private first class (PFC)/E-3 before the incident.  Eighteen months later he was discharged.

3.  He states his commanding officer signed his discharge documents acknowledging his receipt of notification of the recommendation to discharge him.  He was told he would receive an HD and he did not notice the change until after he left Panama.  A military officer should not lie or cheat his troops, which his commanding officer did by signing his name where his (the applicant's) signature should be.  He received a 100-percent disability rating from the Department of Veterans Affairs (VA).  While gathering documents regarding the attack, he found the discharge papers.  His TBI and PTSD were incurred at a time before those problems were fully understood.  Instead of getting help, advantage was taken of him.

4.  He provides:

* notice of an increase in his VA service-connected disability rating
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 1990
* excerpts from his USMC service records
* DA Form 3888-1 (Medical Record – Nursing Assessment and Care Plan)
* two memoranda
* DA Form 3647 (Inpatient Treatment Record Cover Sheet)

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.  Following a period of service in the USMC Reserve, the applicant enlisted in the Regular Army on 12 September 1990.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned to duty in Panama.

3.  His record does not include documentation providing details of an attack on him on 13 September 1991.

4.  His record includes DA Forms 4856 (General Counseling Form) documenting monthly performance counseling he received during May to September 1992.  The forms show he held pay grade E-3 during this period.  Each noncommissioned officer (NCO) who provided counseling indicated he was satisfied with his performance.

5.  On 1 October 1992, he acknowledged receipt of a preliminary suspension of his driving privileges on all Department of Defense military installations due to a citation for intoxicated driving he received on the same date.

6.  On 2 October 1992, he was counseled for driving while intoxicated.

7.  On 30 October 1992, he was counseled for writing bad checks.

8.  On 5 November 1992, his battalion commander imposed nonjudicial punishment (NJP) against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while impaired by alcohol on 1 October 1992.  His punishment included reduction to private (PV2)/E-2 which was suspended to be automatically remitted if not vacated before 5 May 1993.

9.  On 14 November 1992, he was counseled for missing movement.

10.  On 18 December 1992, his battalion commander vacated suspension of the applicant's NJP based on his failure to go at the time prescribed to his appointed place of duty on 15 November 1992.  On 21 December 1992, he was reduced to PV2/E-2 effective 18 December 1992.

11.  On 30 December 1992, he was counseled for writing two bad checks.

12.  On or about 7 January 1993, he underwent a mental status evaluation in conjunction with consideration for administrative separation.  He was found to be mentally responsible and to have the mental capacity to understand and participate in the proceedings.  The examining social worker found no mental health diagnosis and stated the applicant had mental health clearance for whatever action was deemed appropriate by his command.

13.  On 19 February 1993, he underwent a medical examination.  The examining physician noted no significant physical findings and found him qualified for discharge.  The examining physician noted the applicant had undergone surgical repair of a fracture of the left side of his face incurred on 13 September 1991.

14.  On 1 March 1993, his company commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct.  He stated the applicant's conduct had been prejudicial to good order and discipline and he cited counseling for bad checks, driving while impaired, missing formation, and missing movement as reasons for the recommendation.

15.  The record includes a memorandum bearing the applicant's signature block acknowledging receipt of notification of the action to separate him.  The memorandum was signed by the company commander.

16.  On 5 March 1993, the applicant acknowledged he had been advised by consulting counsel of the basis for his contemplated separation for a pattern of misconduct under the provisions of Army Regulation 635-200, chapter 14; the rights available to him; and the effect of a waiver of his rights.  He elected not to submit statements in his own behalf and he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

17.  On 11 March 1993, the separation authority approved his separation and directed issuance of a General Discharge Certificate.  On 13 April 1993, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he held the rank/grade of PV2/E-2 at the time of his discharge and he completed 3 years, 1 month, and 19 days of active military service.

18.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

19.  He provides:

* DA Form 3647 showing he was diagnosed with "head trauma, mild" resulting from an assault as he was leaving the NCO Club at Fort Clayton, Panama, on 14 September 1991
* DA Form 3888-1, dated 16 September 1991, showing he had a fracture of the left molar bone

20.  He provides a page from a notice of an increase in his VA service-connected disability rating.  The page shows he was granted a 0-percent rating for "facial scar associated with residual left zygomatic fracture" effective 30 December 2009.  He was granted the following ratings effective 7 February 2011:

* 100 percent for PTSD with depressive disorder, panic disorder with agoraphobia, and alcohol abuse; and mood disorder and personality change due to head trauma (increased from 30 percent)
* 50 percent for residuals of left orbital fracture with headaches and scar (increased from 10 percent)

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-35 (Disposition through Medical Channels) of the version in effect at the time stated that when the examining medical officer decided a Soldier being considered for separation for misconduct did not meet the retention medical standards, he or she would refer the Soldier to a medical board.  Based on approved medical board proceedings, a commander exercising general court-martial authority could direct processing the Soldier through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it was determined that:

		(1)  the disability was the cause or substantial contributing cause of the misconduct or

		(2) circumstances warranted disability processing instead of administrative processing.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of the regulation.

	c.  Paragraph 3-7a provides that an HD 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.  The evidence of record does not support the applicant's request for a medical discharge, an upgrade of his character of service to honorable, or reinstatement of his rank and pay.

2.  The record shows he was found to be mentally and physically fit for separation processing.  There is no evidence showing he was diagnosed with any conditions that fell below medical retention standards and warranted review by a medical board during his Army service.

3.  The VA granted him a service-connected disability rating for several conditions that may be related to injuries he incurred in September 1991.  However, VA ratings granted several years after the fact are not evidence that the rated conditions were the cause or substantial contributing cause of his misconduct or that circumstances at the time of his discharge processing warranted disability processing instead of administrative processing.

4.  The applicant correctly notes his commander signed a memorandum acknowledging receipt of the notification of separation action that should have been signed by the applicant.  There is no evidence to support his allegation that he was led to believe he would receive an HD or his allegation that his commander attempted to lie or cheat by improperly signing the acknowledgment memorandum.

5.  There is no evidence showing he was harmed by his commander's error.  The record shows he later consulted with counsel and acknowledged the separation action against him, his rights, and the character of service he could receive.

6.  He received NJP for driving while intoxicated, his conduct led to a vacation of the suspended portion of his NJP, and he was counseled for writing bad checks and missing movement.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

7.  He received a suspended reduction to PV2/E-2 and the suspension was vacated.  The record shows he held the rank/grade of PV2/E-2 at the time of his discharge.  In the absence of evidence showing inequity or injustice in his reduction to PV2/E-2, there is no basis for reinstating his rank and pay to 
PFC/E-3.

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

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)                                         AR20120009052



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ABCMR Record of Proceedings (cont)                                         AR20120009052



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