BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130005997 


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 discharge under other than honorable conditions to honorable or general under honorable conditions.

2.  The applicant states his records do not reflect that he completed two honorable enlistments and developed issues from post-traumatic stress disorder (PTSD) during his third term of enlistment after serving in a combat area.  This condition went untreated and was the major cause of his issues that led to his discharge during his third enlistment.  Treatment for this condition is not available without the upgrade of his discharge.  He states the "injury" he suffered did not manifest itself until after his discharge and the "injury" became known.

3.  The applicant provides no 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.  The applicant initially enlisted in the Regular Army in pay grade E-2 on 1 November 1985.  He completed training and was awarded military occupational specialty 88M (motor transport operator).  He served in Korea from 24 August 1987 through 24 August 1988.  He was promoted to pay grade E-4 on 1 March 1988.

3.  He was honorably discharged on 23 May 1988 for the purpose of immediate reenlistment.  He reenlisted on 24 May 1988.

4.  He served in Saudi Arabia in support of Operations Desert Shield and Desert Storm from 13 October 1990 through 21 September 1991.

5.  He was honorably discharged on 23 August 1991 for the purpose of immediate reenlistment.  He reenlisted on 24 August 1991.

6.  He received counseling between March 1989 and 24 September 1992 for the following:

* being apprehended for driving under the influence of alcohol and immediate enrollment in the Alcohol and Drug Abuse Prevention and Control Program
* committing larceny of government property (shoplifting)
* failing to follow instructions
* failing to do proper preventive maintenance checks and services
* disobeying an order
* failing to secure his vehicle
* testing positive for cocaine in a unit urinalysis
* not paying child support
* being involved in an accident with a military vehicle
* consuming alcohol during duty hours
* failing physical training
* failing to attend three scheduled counseling sessions at the Drug and Alcohol Counseling Center, further Uniform Code of Military Justice (UCMJ) action for failing to make all scheduled appointments, and separation from the Army with a less than honorable discharge
* being absent from duty and formation
* failing to repair


7.  A Report of Mental Status Evaluation, dated 30 July 1992, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable.  His thinking process was clear and his thought content was normal.  His memory was good.  The evaluation found he had the mental capacity to understand and participate in the process and was mentally responsible.  The examining doctor diagnosed the applicant with an adjustment disorder, not otherwise specified.  He noted the applicant was offered counseling services in the Mental Health Clinic for his personal benefit, but such counseling should not inhibit the command in its exercise of command responsibility.  The applicant was cleared for any administrative action considered appropriate by the command.

8.  On 4 August 1992, he accepted nonjudicial punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 17 July 1992.

9.  On October 1992, the applicant's company commander initiated action against the applicant to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  He stated the reasons for the proposed action were the applicant's receipt of an Article 15, one vacation of suspension, and numerous counseling statements for various types of misconduct.  He also stated the applicant was apprehended for larceny on 29 August 1992, was absent without leave from 9 to 16 October 1992, and was involved in several incidents involving abuse of alcohol.  The applicant had demonstrated he was a substandard Soldier who could not conform to basic military standards.  He advised the applicant of his rights and that he could receive an honorable, general, or under other than honorable conditions discharge.

10.  On 28 October 1992 after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a less than honorable discharge and the results of receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

11.  On 4 November 1992, the applicant requested a personal appearance before an administrative board.

12.  On 2 February 1993 after consulting with counsel, the applicant waived his request to have his case heard by a board of officers.

13.  On 8 February 1993, the separation authority approved the applicant's discharge and directed the issuance of a discharge under other than honorable conditions and reduction to pay grade E-1.
14.  He was discharged accordingly in pay grade E-1 on 4 March 1993 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 7 years, 4 months, and 4 days of net active service.  His service was characterized as under other than honorable conditions.

15.  Item 18 (Remarks) of his DD Form 214 contains, in part, the entry, “IMMEDIATE REENLISTMENTS THIS PERIOD: 851001-880523; 880524-910823.”

16.  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.

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

	a.  Chapter 14 prescribes policies and procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b provides that 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.

18.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated, in part, to enter in item 18 a list of enlistment periods for which a DD Form 214 was not issued.  Example:  Immediate reenlistments this period:  761210-791001; 791002-821001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  However, the evidence of record shows he received counseling 
between March 1989 and September 1992 and was punished under Article 15 for various acts of misconduct during his second and third terms of enlistment.  

2.  There is an absence of evidence to support his contention that he was suffering from PTSD at the time.  A mental status evaluation shows he was diagnosed with an adjustment disorder and offered counseling service at the Mental Health Clinic.  He was cleared for any administrative action deemed appropriate by the command.

3.  There is no evidence he was found to be unfit by reason of physical disability during his period of active duty service.  He acknowledged the reason for his separation.  He did not mention any medical conditions he was experiencing and it appears he was medically cleared for separation.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service from as early as March 1989 to September 1992 below that meriting a fully honorable or a general discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

6.  Item 18 of his DD Form 214 shows he had two reenlistments during the period covered by the form.  That shows he had two prior periods of honorable service as one cannot reenlist without first being honorably discharged.

7.  The Board does not grant requests for discharge upgrades solely based on previous honorable terms of enlistment.

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)                                         AR20130005997



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ABCMR Record of Proceedings (cont)                                         AR20130005997



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