BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120010625 


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 general discharge to a fully honorable discharge.

2.  The applicant states:

* During his military service, he shattered his left ankle and messed up his right knee
* He was hospitalized for 3 months for surgery and rehabilitation; he was then issued a permanent physical profile because he was put in a cast
* The profile prevented him from performing the duties required of his infantry duties
* When he returned to the unit, he was ostracized, belittled, and generally mistreated; he was told he was no good on multiple occasions
* He was depressed and started drinking heavily; he asked for help but none was given; instead, he was thrown out
* He has since recovered but he is now being treated for multiple conditions 
* He does not want to reenter the Army; he just wants the upgrade for peace of mind and putting the past behind him

3.  The applicant did not provide any additional evidence.

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.  Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 17 June 1986 and held military occupational specialty 11B (Infantryman).

3.  He served in Sinai from November 1986 to May 1987.  He was assigned to the 3rd Battalion, 327th Infantry, out of Fort Campbell, KY.  The highest rank/grade he attained during his military service was private (PV2)/E-2.

4.  He was awarded or authorized the Army Service Ribbon, Multi-National Force Observers Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar. 

5.  His record shows that during his service he was frequently counseled by several members of his chain of command for various infractions including:

* Wrongfully possessing a controlled substance
* Failing to follow orders and lack of responsibility
* Driving out of the motor pool without a dispatch
* Failing to top off his vehicle during a division alert
* Writing bad checks
* Being found asleep while on duty
* Failing to report on multiple occasions

6.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 4 September 1986 for breaking restriction
* 
2 March 1987 for wrongfully using hashish
* 6 July 1987 for being incapacitated for the proper performance of duties after overindulging in intoxicating liquor or drugs

7.  On 25 November 1987, he underwent a mental status evaluation due to his ongoing misconduct.  The military psychologist determined he had the mental capacity to understand and participate in administrative proceedings, he was mentally responsible, he met retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), and he was cleared for any administrative action deemed appropriate by his chain of command.

8.  On 21 December 1987, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to unsatisfactory performance with a general discharge.  The commander cited specific instances of failing to be at his appointed place of duty, failing to follow instructions, dereliction of duty, being drunk on duty, and breaking restriction.

9.  On 21 December 1987, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him.  He elected to submit a statement in his own behalf; however, no such statement is available for review with this case.  He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

10.  On 23 December 1987, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with a general discharge.

11.  On 29 December 1987, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed the issuance of a General Discharge Certificate.

12.  Accordingly, on 8 January 1988, the applicant was discharged.  The DD Form 214 he was issued at the time shows he completed 1 year, 6 months, and

22 days of net active service this period for a total of 1 year, 9 months, and
27 days of creditable active service.

13.  His medical records are not available for review with this case.  There is nothing in his personnel service record that shows he was issued a permanent physical profile, he was unable to perform his infantry duties, or that his alleged medical condition caused his ongoing misconduct.

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

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

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A general or honorable discharge was considered appropriate.

	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.  The available evidence shows the applicant's duty performance was tarnished by three instances of NJP - one of which was for wrongfully using illegal drugs - and a history of negative counseling.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.  There is no evidence to show any medical condition caused his disciplinary problems.

3.  There is no evidence in the available records and he provides none to corroborate his contention that he was injured, hospitalized, issued a permanent profile, and/or was unable to perform his infantry duties.  More importantly, there is nothing in his record that shows such a condition caused his ongoing misconduct or was a contributing factor to his misconduct.

4.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable 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)                                         AR20120010625



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120010625



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1