IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140014889 


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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC) or a medical discharge.

2.  The applicant states:

* he was young, dumb, scared, and coerced into confessing to something he did not do
* he was around the wrong crowd
* he was discharged with a shattered heel on his right foot
* he is now having trouble walking and he just knew he could be treated
* he has raised two children since his discharge and he is now a patriot

3.  The applicant does not provide any 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 enlisted in the Regular Army on 25 November 1986.

3.  Records show he was counseled on multiple occasions for missing formation, failing room inspections, duty performance, failing to report at the prescribed time, and alcohol restriction.

4.  On 1 June 1988, he was counseled regarding possible administrative separation for continued unsatisfactory performance and misconduct.  He was also informed of a recommendation to bar his reenlistment.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 3 June 1988, shows:

* he previously received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order
* his commander stated he was repetitively unwilling to conform to the behavior of a good Soldier
* he declined to submit statements in his own behalf
* his bar to reenlistment was approved

6.  A DA Form 3997 (Military Police Desk Blotter), dated 3 August 1988, shows:

	a.  the applicant's room was inventoried on 31 May 1988 and a medical stethoscope smoking device containing hashish and a 35-millimeter film canister containing hashish residue was found,

	b.  military police witnessed him sell lysergic acid diethylamide (LSD) to an unknown individual on 3 August 1988,

	c.  he was apprehended for the following:

* wrongful distribution of LSD
* wrongful possession of hashish
* failure to obey a lawful order/written regulation
* wrongful possession of drug paraphernalia

	d.  his previous offenses included:

* assault consummated by battery
* drunk and disorderly conduct
* wrongful possession and use of hashish/possession of drug abuse paraphernalia
* escape from custody

7.  On 12 October 1988, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for resisting apprehension.

8.  His DA Form 3822-R (Report on Mental Status Evaluation), dated 10 November 1988, shows he had no mental defects and he had the mental capacity to understand and participate in separation proceedings.

9.  His complete discharge package is not available for review.

10.  On 25 January 1989, he was discharged UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – drug abuse.

11.  A Standard Form 502 (Narrative Summary – Clinical Resume), dictated on 10 May 1989, states:

* he fell on some ice on 24 November 1988 and incurred a calcaneal fracture, right foot
* he was admitted to the hospital on 28 November 1988
* he was authorized 30 days convalescent leave on 1 December 1988
* he returned to the hospital with a black eye on 9 January 1989
* he was discharged from the hospital on 10 January 1989
* he was to receive follow-up care in 4 to 6 weeks at the local Department of Veterans Affairs hospital close to his home since he was being discharged

12.  His DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 May 1989, shows his 24 November 1988 injury was in the line of duty.

13.  His available records are void of and he failed to provide any evidence that he was found medically unfit for retention or had a condition requiring processing through the Army Physical Disability Evaluation System (PDES).

14.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter are referred for disability processing.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) established 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 or her office, grade, rank, or rating.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

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

	a.  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.

	b.  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.

	c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge UOTHC or a medical discharge was carefully considered.

2.  His actions at the time clearly brought discredit upon himself and the Army.  He was 22 years old when his misconduct began; there is no evidence that his indiscipline was caused by his age or that he was any less mature than other Soldiers who successfully completed their terms of service.

3.  In the absence of evidence to the contrary, it is presumed that his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

4.  His records are void of and he failed to provide any evidence that he was found unfit or he had a condition warranting processing through the PDES.

5.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is an insufficient evidentiary basis to grant him the requested 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 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)                                         AR20140014889



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ABCMR Record of Proceedings (cont)                                         AR20140014889



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