IN THE CASE OF:    

		BOARD DATE:  7 October 2014 	  

		DOCKET NUMBER:  AR20130019586 


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 reconsideration of his previous request to, in effect:

* restore his rank of specialist four (SP4)/E-4 and sergeant (SGT)/E-5
* remove or expunge all injustices from his record, including:

* Articles 15 (nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ))
* a letter of reprimand (LOR) dated 14 February 1988
* a police report dated 14 February 1988, concerning driving under the influence (DUI)
* his bar to reenlistment

2.  Additionally, the applicant requests that, in effect:

	a.  his discharge under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c (Misconduct-Commission of a Serious Offense) be voided; and

	b.  he be medically retired with disability, with a combined service-connected disability rating of between 70 to 90 percent (%), retroactive with pay to             13 December 1988.

3.  The applicant states, in effect, that he was subject to double jeopardy by receiving an Article 15, reduction in rank, an LOR, a DUI, and an administrative discharge.  Additionally, his board of officers contained a major (MAJ), two captains (CPT), and a sergeant first class (SFC) instead of just officers.  This violated his rights and rendered his discharge null and void.  Furthermore, he had numerous and serious medical conditions that warranted a medical retirement.  

4.  The applicant provides:

* four self-authored statements, dated 25 September 2013, 25 July 2014,    1 August 2014, and 15 August 2014
* general statement/statement of claims (18 pages), undated
* 48 pages of medical records
* Sworn Statement, undated
* a printout with various service data
* three memoranda, dated 2 March 1988, 20 June 1988, and 29 July 1988
* Bar to Reenlistment, dated 3 March 1988
* Notification of Commander's Intent to Initiate Separation, dated 20 July 1988
* Acknowledgement of Notification, dated 3 November 1988
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Board for Correction of Military Records (ABCMR) Docket Number AR2003092509, dated 27 January 2004

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 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's request to restore his rank of specialist four/E-4 and sergeant/E-5; remove or expunge all injustices from his record, to include the Articles 15 he received, an LOR dated 14 February 1988, a police report dated 14 February 1988, concerning a DUI charge, and his bar to reenlistment were previously considered in ABCMR Docket Number AR2003092509 on 27 January 2004.

3.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant’s request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, his request for reconsideration does not meet the criteria outlined above.  The ABCMR will not consider any further requests for reconsideration of these matters.  However, the applicant does have the option to seek relief in a court of appropriate jurisdiction. Based on the foregoing these issues, for which he sought reconsideration, will not be addressed further in this Record of Proceedings.

4.  The applicant enlisted in the regular Army on 29 January 1980 and served through two enlistments.  He held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was SGT/E-5.

5.  His record contains a DA Form 3349 (Physical Profile), dated 23 May 1986, which shows he had a permanent level 2 profile (P-2) in the lower extremities for his condition of mechanical lower back pain.  

6.  He received an LOR for failing to submit himself to military control during the period 9 April through 27 May 1986.  The LOR stated that, after signing out on permanent change of station (PCS) leave on 11 March 1986 and subsequently having those PCS orders revoked, he failed to present himself for duty until his company commander sent troops to his quarters to retrieve him on 27 May 1986. On 15 December 1986, the applicant elected not to submit statements or documents on his behalf.

7.  His record contains an intra-station reassignment, dated 12 March 1987, which shows he was reassigned to a new unit, effective 16 March 1987.  The additional instructions state this was a rehabilitative transfer.

8.  His record contains a memorandum, dated 17 June 1987, which states he had an unsatisfied court judgment against him that was dated 30 December 1986.  The amount of the judgment was $2539.70 plus $37.50 in court costs.  The judgment arose from a suit initiated by a chief warrant officer two (CW2) who was forced to pay money on a due mortgage, which the applicant had agreed to assume, after the applicant defaulted on the mortgage payments from the home he purchased from the CW2.

9.  His record contains a Military Police (MP) report and allied documents dated 
28 July 1987 which shows he was involved in a traffic accident that resulted in his swerving into a wooden barrier with his vehicle.  His vehicle damaged the wooden barrier and he was charged with damage to government property.  

10.  His record contains a DA Form 4833 (Commander’s Report of Disciplinary Action or Administrative Action), dated 25 August 1987, which shows his commander issued him an oral admonition for damaging government property.

11.  His record contains an MP report, dated 14 February 1988, which shows he was arrested by local Police Department on 14 February 1988 DUI.  

12.  His record contains a DA Form 4856-5 (General Counseling Form), dated 
15 February 1988, which shows his first sergeant (1SG) counseled him.  The counseling indicated the local police department counseled him after his arrest for DUI on 14 February 1988, that after consulting with his acting company commander and battalion commander reference his arrest, his leave had been cancelled pending civil court action and administrative action, including a suspension of favorable personnel action (FLAG), a bar to reenlistment, a General Officer Memorandum of Reprimand (GOMOR), and a possible discharge in accordance with Army Regulation 635-200, chapter 14.  This form also states he was previously involved in an accident on post in which alcohol had been a contributing factor.  Additionally, on 16 February 1988, his supervisor, a staff sergeant (SSG), also counseled him regarding the DUI incident.  

13.  On 2 March 1988, he received an LOR for his apprehension for DUI on       14 February 1988 by the local police department.  Upon his apprehension, his blood-alcohol test indicated he had a blood-alcohol content of .16.  On 11 March 1988, he elected not to make any statement on his behalf.

14.  On 3 March 1988, a bar to reenlistment was initiated wherein his commander cited his record of nonpayment of just debts, two letters of reprimand, DUI, failure to complete a unit run within established standards, a traffic accident, and a rehabilitative transfer as reasons for the bar.  He signed the DA Form 4126-R (Bar to Reenlistment Certificate) on 3 March 1988 and indicated his desire to submit a statement in his own behalf.  However, on         11 March 1988 he annotated the form that he did not want to make any statement on his behalf and signed by his annotation.  The division commander approved the bar to reenlistment on 3 May 1988.

15.  On 14 April 1988, he completed a separation physical and was found qualified for separation.

16.  On 15 April 1988, he completed a mental status evaluation and was found to be mentally responsible and to have the mental capacity to understand and participate in board proceedings.

17.  His record shows he was reported as absent without leave (AWOL) on         6 June 1988 and he surrendered to military authorities on 10 June 1988.

18.  On 10 June 1988, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for disobeying a lawful order to report to the 1SG’s office and for disobeying a lawful order by failing to respond to a telephonic order by the 1SG to report to the company area immediately.  His battalion commander imposed a punishment of a reduction to pay grade E-4, a forfeiture of $519.00 pay per month for 2 months (suspended until 6 December 1988), 45 days restriction, and 45 days extra duty. He appealed his punishment and his appeal was denied on 17 June 1988.

19.  His record contains a DA Form 3349, dated 6 June 1988, which shows he had a temporary profile, for pleurodynia (pain in the chest or side), which expired on 13 June 1988.  However, he provided another DA Form 3349, dated 13 June 1988, which was not in his military record and appears to be an altered version of the above-mentioned form.  

20.  On 20 June 1988, the applicant was administratively reduced, for misconduct, from specialist four to private, E-1 in accordance with the provisions of Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 6-3c (a Soldier convicted by a civil court will be reduced or considered for reduction), effective 14 June 1988.  The memorandum indicated he had been convicted for driving under the influence of alcohol.  

21.  On 5 July 1988, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from his unit from 6 June 1988 to on or about 10 June 1988.  His battalion commander imposed a punishment of a forfeiture of $350.00 pay per month for 2 months (suspended until 2 October 1988), 30 days restriction, and 30 days extra duty.  The applicant did not appeal the punishment.

22.  On 12 July 1988, he was notified by his immediate commander of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12c, for the commission of a serious offense.  He acknowledged receipt of notification on that same day.

23.  On 20 July 1988, he acknowledged he had been advised by his counsel of the basis for the contemplated separation action under Army Regulation        635-200, paragraph 14-12c and its effects, the rights available to him, and the effect of any action taken by him to waive his rights.  He requested consideration of his case by a board of officers and requested counsel for representation at his board.  His commander formally initiated elimination action that same day.  

24.  On 29 July 1988, he received an LOR for his civil conviction on 14 June 1988 for DUI.  He elected not to submit statements or documents in his behalf.

25.  On 3 November 1988, a board of officers convened to consider his case.  The board found it had been clearly established that despite attempts to rehabilitate or develop him into a satisfactory Soldier, further effort was unlikely to succeed, was impractical, and he was not amenable to rehabilitation measures.  The board determined the case was appropriate for disposition within the criteria of Army Regulation 635-200, section III (Misconduct), paragraph 14-12c (commission of a serious offense) because his offenses warranted separation with a punitive discharge.  The board recommended he be discharged by reason of misconduct and issued a general discharge.

26.  On 6 December 1988, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a general discharge.  

27.  On 13 December 1988, he was discharged accordingly.  His DD Form 214 confirms he was discharged in accordance with Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense.  He completed 8 years, 10 months, and 11 days of creditable active service and had 5 days of lost time.

28.  On 13 November 2002, the Army Discharge Review Board denied his request for a discharge upgrade.

29.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards (MEB) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  

	a.  If an MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

	b.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	c.  Chapter 3 states disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

30.  Army Regulation 635-200, chapter 14, dated 20 July 1984, and in effect at the time of the applicant's discharge, establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Action will be taken to separate a soldier for misconduct when it is clearly established that: despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed; rehabilitation is impracticable or soldier is not amenable to rehabilitation (as indicated by the medical or personal history record); and the Soldier has an unfit medical condition that is not the direct or substantial contributing cause of his or her conduct.  

	a.  Paragraph 14-3 (Characterization of service or description of separation) states 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.  

	b.  Section III (Acts or Patterns of Misconduct), paragraph 14-12 states Soldiers are subject to separation per paragraph 14-12c this section for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Court-Martial.  Soldiers may be discharged under this paragraph for being an absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense.  Additionally, Soldiers may also be discharged under this paragraph for the abuse of illegal drugs, which is serious misconduct.  Separation action normally will be based upon commission of a serious offense.  

	c.  Paragraph 2-2d states the Soldier has the right to a hearing before an administrative separation board if he or she will have 6 or more years of total active and reserve service at the time of separation.

	d.  Paragraph 2-7 (Composition of board) states a board convened to determine whether a Soldier should be separated under the Administrative Board Procedure will consist of at least three experienced commissioned, warrant, or noncommissioned officers.  Enlisted Soldiers appointed to the board will be in grade E-7 or above and senior to the respondent.  At least one member of the board will be serving in the grade of major or higher, and a majority will be commissioned or warrant officers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was subject to double jeopardy by receiving an Article 15, reduction in rank, an LOR, a DUI, and an administrative discharge; however, the double jeopardy argument does not apply in his case.  Double jeopardy is a principle only applied to military and civilian courts when dealing with punishments and convictions for criminal offenses.  His record contains numerous instances of UCMJ and several LORs.  However, this type of punishment is administrative and not judicial.

2.  His record of misconduct includes failure to pay just debts, AWOL, numerous instances of NJP under the provisions of Article 15 of the UCMJ, several LORs, and a civil conviction for DUI – a serious offense.  He received an administrative discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-commission of a serious offense.  However, this discharge was administrative in nature.  Administrative discharges are a means of managing the Army's retention and not a form of punishment.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  Furthermore, no error or injustice occurred when an SFC sat on his separation board, as based on his rank/grade at the time this was authorized in accordance with the governing Army regulation. 
4.  The applicant is not authorized a medical disability discharge or a medical disability retirement because he was considered medically and psychiatrically fit for military service and there is no evidence a medical condition contributed to the misconduct that preceded his discharge.  Furthermore, he received a pre-separation medical evaluation that noted his mental status was within normal limits and he was medically qualified for separation.  Additionally, there are no records to show he suffered from, was diagnosed with, or treated for an illness or injury that merited entry into the PDES.

5.  Based on the foregoing, the applicant's request should be denied.  

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)                                         AR20130019586





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ABCMR Record of Proceedings (cont)                                         AR20130019586



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