IN THE CASE OF: 

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130017072 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states his discharge was based on his action to defend his wife as well as his negligence to establish his current and ongoing condition of post-traumatic stress disorder (PTSD) and other physical and mental health problems.

3.  The applicant provides 6 pages from his medical records at the Department of Veterans Affairs (VA) Medical Center (VAMC) in St. Louis, MO. 

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.  On 16 January 1990, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

3.  On 21 May 1990, he was assigned to B Company, 317th Engineer Battalion in Germany.  He was deployed to Southwest Asia from 5 December 1990 to 
27 April 1991.

4.  On 5 December 1991, he was assigned to B Company, 317th Engineer Battalion at Fort Benning, GA.

5.  He accepted nonjudicial punishment (NJP) on:

* 21 January 1992 for failing to obey a lawful order from a noncommissioned officer
* 28 July 1992 for committing an assault upon a specialist with intent to inflict grievous bodily harm

6.  The Garrison Commander, Headquarters, U.S. Army Infantry Center, Fort Benning, GA provided an undated memorandum, through the applicant's chain of command, to the applicant, subject:  Misconduct.

	a.  On 7 October 1992, the applicant and his wife were involved in a domestic incident requiring intervention by the military police (MP).  The Staff Judge Advocate titled the applicant with domestic disturbance/failure to obey a lawful order.

	b.  Due to the seriousness of the incident, and because this was his second offense at Fort Benning, he was directed to make an appointment with the Community Life Office, accompanied by his supervisor, to show cause why the commander should not recommend termination of his privilege to live in government quarters.

7.  He received the following formal counseling:

	a.  On 5 February 1993, he was counseled by a sergeant (SGT) for missing formation due to his being arrested for assault on his wife.  A sergeant first class (SFC) had to get him at the MP Station.  The first sergeant decided to put him in the barracks for the weekend to separate him from his wife.  The first sergeant ordered him not to go to his quarters until 16 February 1993 after talking to the commander.

	b.  On 8 February 1993, he was counseled by a SGT about returning to his quarters after the commander told him not to and upon returning there a second time and having a dispute with his wife.  It was the second time the MPs were called and he was arrested.

	c.  On 10 February 1993, he was counseled by an SFC for returning to his quarters at 1140 hours on 10 February 1993 after having been given a direct order on two occasions not to return to his quarters.

8.  On 24 February 1993, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for his patterns of misconduct.  The reason for the proposed action was the applicant's three domestic disturbances, assaults, and drunk and disorderly.  The commander further notified the applicant he was recommending that he receive a general discharge under honorable conditions.  

9.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

10.  On 25 February 1993, after having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions 
of chapter 14 of Army Regulation 635-200 for misconduct.  He did not submit statements in his own behalf.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

11.  On 26 February 1993, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

12.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice) shows he received NJP on 26 February 1993.  However, paragraph 1,  wherein the charges are listed, contains the statement "See Continuation Sheet."  The continuation sheet was not available for review.

13.  His commander recommended him for separation under the provisions of paragraph 14-12b of Army Regulation 635-200 from the Army prior to the expiration of his term of service.  He recommended he receive a General Discharge Certificate and not be transferred to the Individual Ready Reserve (IRR).

14.  On 19 March 1993, the appropriate authority approved the recommendation for discharge of the applicant, directed he be issued a General Discharge Certificate, and that he not be transferred to the IRR.

15.  On 30 March 1993, he was discharged.  He completed 3 years, 2 months, and 15 days of active service that was characterized as under honorable conditions.  

16.  His service medical records were not available for review.

17.  The applicant provided 6 pages from his treatment records at VAMC St. Louis that consist of various progress notes.

	a.  In a primary care general note, dated 15 August 2001, the assessment/prognosis (A/P) is shown as depression/anxiety.  He declined medication and was referred to psychiatry.

	b.  In a note, dated 11 February 2001, a primary care nurse indicated he had been screened positive for depression.  A consult from psychology services was being requested.

	c.  In a note, dated 16 October 2001, the staff psychiatrist indicated his A/P as major depression, moderate.

	d.  In a note, dated 6 March 2002, the staff psychiatrist indicated the applicant had several anxiety attacks since they first met in October 2001.  He had both depressive and anxiety symptoms.  They discussed his anxieties about becoming addicted to medication.  The psychiatrist's A/P was dysthymia (mood disorder) and panic attacks.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  
	a.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  That included discreditable conduct and conduct 
prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The medical records he submitted indicate he was being treated for dysthymia, panic attacks, and depression as early as October 2001.  However, this is over 7 years since his discharge from the Army.  There is no evidence of a diagnosis of PTSD.  There is no evidence he was diagnosed with PTSD or any other mental condition while on active duty.

2.  It is clear his entire period of service was considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

3.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  In view of the above, there is an insufficient basis to upgrade his 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.




      _______ _   _______   ___
               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)                                         AR20130017072



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ABCMR Record of Proceedings (cont)                                         AR20130017072



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