IN THE CASE OF:	   

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130000462 


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 an honorable discharge.

2.  The applicant states:

* he was suffering from Post-Traumatic Stress Disorder (PTSD) and did not know it
* he did not have the mental mindset to handle himself after returning from Desert Storm
* he was acting irresponsibly because he could not adjust
* he was diagnosed with PTSD
* making rank in war and having it taken away because he was flagged pushed him into a corner
* from that point he just gave up
* as a young man he made mistakes, but as a wiser man he has learned from those mistakes
* he has paid the price of shame

3.  The applicant provides Department of Veterans Affairs (DVA) documentation, dated 2 January 2013.


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 was born on 10 April 1970.  He enlisted in the Regular Army on 23 August 1989 at 19 years, 4 months, and 14 days of age.  He completed his training and he was awarded military occupational specialty 88M (motor transport operator).  He served in Southwest Asia from 21 January 1991 to 9 May 1991.

3.  In August 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty (three specifications).

4.  In October 1991, he accepted NJP under Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty and dereliction of duty.

5.  He was counseled for:

* failing to follow instructions
* failing to wear proper uniform
* failing to report to formation in proper uniform
* missed formations
* disobeying a direct order to be at his place of duty

6.  On 5 November 1991, he underwent a separation physical examination and he was found qualified for any administrative action deemed appropriate by his command.  He reported he was in "good" health on his Standard Form 93 (Report of Medical History).  He also underwent a mental status evaluation on
5 November 1991 and he was found mentally responsible.


7.  On 26 November 1991, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander cited:

* he was counseled on numerous occasions for missing formations and for not being in the proper uniform
* he had two Article 15's

8.  On 26 November 1991, he consulted with counsel and he acknowledged notification of his pending separation action.  He also acknowledged he understood he might encounter substantial prejudice in civilian life if a general discharge was issued.  It appears he elected not to submit a statement in his own behalf.

9.  On 5 December 1991, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

10.  On 24 December 1991, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He completed 2 years, 4 months, and 2 days of creditable active service.

11.  There is no evidence of record and he did not provide any evidence that shows he was diagnosed with PTSD prior to his discharge.

12.  He provides DVA documentation, dated 2 January 2013, that states he is receiving service-connected disability compensation from the DVA rated at
40 percent.  His disabling medical condition is unknown.

13.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.

	a.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a 


disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions.

	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 applicant contends he was suffering from PTSD and did not know it.  However, there is no evidence of record and he provides no such evidence that shows he was diagnosed with PTSD or any mental condition prior to his discharge in 1991.  He stated at the time that he was in good health.

2.  He contends he made mistakes as a young man.  However, age is not a sufficiently mitigating factor.  He was over 19 years of age when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

3.  His record of service included adverse counseling statements and two NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20130000462



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ABCMR Record of Proceedings (cont)                                         AR20130000462



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