IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130021076 


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, under honorable conditions discharge to fully honorable.

2.  The applicant states:

* the record is in error due to combat stress or post-traumatic stress disorder (PTSD); he was not given a correct diagnosis
* he was not given a mental or a medical examination when he returned home from war (Southwest Asia) in 1991; he was having problems with PTSD and depression
* he provided jail records and they show he was suffering from mental problems for years until he moved to Miami, FL
* since he moved to Miami, he was under a lot of stress but did not receive medical help
* not only did he lose his career, but he also lost his first family and immediate family due to war
* he broke out with sores all over his body and he was having medical issues that he can't even explain
* he applied for unemployment compensation at the time but he was denied; this left him with no income and he could not gain employment
* over the years, his condition has gotten worse and he was ultimately seen by the Department of Veterans Affairs (VA) in Miami, FL
* he is in therapy to learn coping skills so he may become a better person, husband, and citizen

3.  The applicant provides:

* Two certificates of marriage
* Georgia Bureau of Investigation consent form
* Criminal History Record
* Two reference letters
* Arrest/complaint records
* VA correspondence and rating decision

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's records show he enlisted in the Regular Army on 3 February 1988 and he held military occupational specialty 11H (Heavy Anti-Armor Weapons Specialist).   

3.  On 11 July 1989, at Fort Bragg, NC, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for missing platoon inspection and leaving his equipment unsecure. 

4.  He served in Southwest Asia from 27 November 1990 to 30 March 1991.  He was awarded or authorized the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Parachutist Badge, Army Achievement Medal, National Defense Service Medal, Combat Infantryman Badge, and Southwest Asia Service Medal with two bronze service stars. 

5.  His records show he was frequently counseled by members of his chain of command for various infractions, including: 

* deficient behavior and conduct
* failing to be at his appointed place of duty
* being absent from inspection
* security violations
* being late to formation
* lack of motivation
* poor teamwork
* failing to follow instructions
* being disrespectful
* communicating a threat 

6.  On 30 January 1991, in Saudi Arabia, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of a suspended reduction to E-2.

7.  On 22 May 1991, the suspension of punishment of reduction to E-2 was ordered vacated after he had been reported absent without leave (AWOL) on 29 April 1991. 

8.  On 12 June 1991, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 6 to 7 June 1991. 

9.  On 18 July 1991, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his misconduct.  He was furnished with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority.

10.  On 22 July 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct - pattern of misconduct.  Specifically, the immediate commander cited the applicant’s failing to report, dereliction of duty, disobeying orders, being AWOL, and receiving multiple Article 15s.  The immediate commander noted that the applicant:

* was a non-productive Soldier who placed his personal needs ahead of those of his unit
* had a history of substandard duty performance and further service was unwarranted

11.  On 22 July 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, 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/rights that were available to him.  He waived consideration of his case by an administrative separation board and waived a personal appearance before an administrative separation board contingent upon receiving a characterization of service no less favorable than an under honorable conditions, general.  He also elected not to submit a statement on his own behalf.  He acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws

12.  The applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct - pattern of misconduct, with the issuance of a general, under honorable conditions discharge.  His intermediate commander recommended approval of the separation action for misconduct with the issuance of a general discharge.

13.  On 1 August 1991, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - pattern of misconduct and directed the applicant be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 28 August 1991.

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 28 August 1991 in accordance with chapter 14 of Army Regulation 635-200 with a general, under honorable conditions discharge.  This form further confirms he completed a total of 3 years, 6 months, and 26 days of creditable active military service.

15.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  He provides: 

	a.  Two certificates of marriage, a consent form from the Georgia Bureau of Investigation, and multiple arrest records. 

	b.  Criminal History Record reflecting an extensive history of felonies and/or misdemeanors and their disposition.

	c.  Letter of reference from a pastor who opines the applicant is a member of his congregation in Miami.  He has a heart and compassion for the mission and the people in the community. 

	d.  Letter of support from another pastor who opines the applicant is a person who loves God, his family, and his country. 

	e.  Multiple post-service VA correspondence and a VA rating decision (which includes PTSD). 

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

18.  Army Regulation 635-200, 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 evidence of record shows the applicant had a history of disciplinary problems including multiple instances of NJP, instances of AWOL, an extensive history of negative counseling, and a bar to reenlistment.  His record of misconduct started before he went to Southwest Asia.  As a result, his chain of command initiated separation action against him for pattern of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant does not provide any evidence that shows he suffered from or was diagnosed with a medical or mental condition upon his discharge.  He provides multiple post-service documents - specifically from the VA - that reflect conditions long after his discharge.  

3.  There is no evidence his pattern of misconduct was caused by a medical or mental condition or that any mental condition was a contributing factor to his misconduct.  

4.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to 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)                                         AR20130021076





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ABCMR Record of Proceedings (cont)                                         AR20130021076



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