IN THE CASE OF:  

		BOARD DATE:  18 December 2014	  

		DOCKET NUMBER:  AR20140008694 


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 that his general, under honorable conditions discharge (GD) be upgrade to honorable.

2.  The applicant states he had a traumatic brain injury (TBI) at the time of his discharge which was responsible for his behavior.  No one knew what TBI was in 1991.  He did not have any issues until after his car accident when he began to have difficulties.  The Department of Veterans Affairs (VA) granted him a service connected disability rating in 2013 for his TBI.  The applicant believes his GD reflects badly on his record and depresses him because it makes it look like he was a bad Soldier.  He now understands, as a result of therapy, that his GD is a manifestation of his TBI.

3.  The applicant provides no additional documentation.  He did refer to his VA claims folder and claim number but provided no documents.

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 14 September 1988, the applicant enlisted in the Regular Army.  He completed his initial training as a single channel radio operator.

3.  In February 1989, the applicant was assigned for duty with the 578th Signal Company located in the Federal Republic of Germany.

4.  On 1 September 1989, the applicant was advanced to the rank of private first class, pay grade E-3.

5.  On 23 October 1991, the applicant accepted nonjudicial punishment (NJP) for violation of:

	a.  Article 86, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty;

	b.  Article 121, UCMJ, for wrongful appropriation of a military vehicle; and

	c.  Article 92, UCMJ, for dereliction in the performance of his duty by failing to inform his supervisor of his attempt to switch duties with another Soldier.

6.  On 2 December 1991, the applicant's company commander notified him that he was intending to take action to effect his discharge for a pattern of misconduct.  The commander cited as a basis for this action the applicant's offenses of failing to repair, indebtedness, violation of policies, and failure to obey lawful orders.  His misconduct demonstrated that, despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort would likely not succeed.

7.  On 2 December 1991, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to the pattern of misconduct discussed above.  He requested a waiver of further rehabilitative efforts.

8.  On 3 December 1991, the applicant consulted with counsel concerning his rights.  He elected to make a statement in his own behalf.

9.  On 10 December 1991, the applicant requested that the administrative separation proceeding be disapproved and that he be permitted to serve on active duty until the expiration of his term of service (ETS).  He argued that after requesting a transfer to another site, under the direction of two other noncommissioned officers (NCOs), he began to see a different side of the Army.  He was being taught what the Army was all about.  Soon those two NCOs departed and another NCO took charge.  There were many complaints and that NCO was given a job as the company’s training NCO.  The applicant had previously submitted a request for an early release.  From April to early July 1991, he was under the impression that he would be going home in August.  His paperwork had been approved and he had received orders.  Then he was told he could no longer leave.  He then promised his supervisor that he would lose the “short-timer’s” attitude.  His supervisor believed the applicant had improved as shown by his being recommended for promotion.  However, the company commander disapproved the promotion.  He had been in the primary zone for promotion for over a year and was never counseled.  Later, the applicant was involved in an accident.  He had utilized a military vehicle without going through the proper channels.  He was wrong and deeply regretted this incident.  He received an NJP and diligently performed the tasks given him as punishment.  He acknowledged that a GD would give rise to substantial prejudice in the civilian sector.  He joined the Army at a young age to get away from his surroundings.  He was young and immature but he had learned a lot during the previous 3 years and had grown as a person.  He believed that if he were to be transferred to another unit, he could continue to succeed.  He had 9 months remaining and was confident he could complete the time in service honorably.

10.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a DD Form 257A (General Discharge Certificate).  Furthermore, he was not to be transferred to the USAR.

11.  On 24 December 1991, the applicant was accordingly discharged.  He had completed 3 years, 3 months and 11 days of creditable active duty service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.



   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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to honorable because he was suffering from a TBI that caused his behavior.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The available evidence shows that the applicant had a pattern of misconduct that included his failure to repair, indebtedness, violation of policies, and failure to obey lawful orders.  He provides no evidence of his car accident, and did not mention it when he responded to the notification of separation.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service less than honorable.

5.  There is no available documentary evidence showing the applicant had incurred a TBI, or that such injury was the proximate cause of his pattern of misconduct.

6.  In view of 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)                                         AR20140008694



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ABCMR Record of Proceedings (cont)                                         AR20140008694



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