BOARD DATE:	  7 May 2015

		DOCKET NUMBER:  AR20140016721 


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, reconsideration of his previously denied application for an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states he was in a military hospital for 5 days; however, he was erroneously carried as being in an absent without leave (AWOL) status.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* 15-page questionnaire
* 5 character reference letters
* Numerous pages of Medical Progress Notes

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001052934, dated 10 May 2001.

3.  The applicant provides a new argument.  He also raises a new issue related to his discharge.  This warrants consideration by the Board.

4.  The applicant enlisted in the Regular Army on 19 May 1976.  He completed training and he was awarded military occupational specialty 72E (Telecommunications Center Specialist).

5.  On 16 March 1977, the applicant was hospitalized for a drug reaction to phencyelidine (PCP).  He was incapacitated for approximately 5 days.

6.  His records contain a DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 15 April 1977, which states the applicant was admitted to the Army hospital at Fort Ord, CA, on 16 March 1977.  He was referred to the psychiatric clinic after he ran up to the main gate claiming someone was trying to kill him.  Shortly thereafter, he began scuffling with the military police (MP), attempted to drive off in an MP car, and sustained multiple bruises.  Investigation revealed the applicant was suffering from drug abuse (PCP) and his mental status diagnosis showed no signs of depression or psychosis.  Since injuries resulted from incapacitation directly attributed to the intentional abuse of drugs, it was determined the incident was classified as not in the line of duty due to own misconduct and was approved by the commander on 18 April 1977.

7.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 7 June 1977, for being derelict in the performance of his duties on 28 May 1977
* 6 August 1977, for using the controlled substances, PCP and marijuana, on or about 16 March 1977
* 21 February 1978, for willfully disobeying a lawful order on 29 January 1978
* 14 June 1978, for reporting for duty out of uniform and violating a lawful general regulation 

8.  On 20 December 1977, the applicant received an approved local bar to reenlistment, due to his substandard appearance and attitude.  He was frequently late for formations or in reporting to his place of duty and he had received both informal and formal counseling.

9.  On 25 August 1978, he underwent a mental health evaluation.  He was found to have no significant mental illness, to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in proceedings deemed appropriate by his chain of command.

10.  On 12 October 1978, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct - frequent incidents of a discreditable nature with civil or military authorities.

11.  On 12 October 1978, he acknowledged the commander's intent to separate him.  He consulted with legal counsel, and 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 requested consideration of his case by a board of officers and a personal appearance before the board, and he elected not to submit a statement on his own behalf.  The applicant further indicated he understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him and as a result of the issuance of a discharge, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

12.  On 13 December 1978, a hearing was held.  The applicant's current and prior company commanders, platoon leader, platoon sergeant, and acting platoon sergeant testified for the Government attesting to his poor attitude and actions.  The applicant testified, refuting most of the testimony of the Government's witnesses, stating that he had never been counseled, and that he felt if he received a rehabilitate transfer he would be able to finish out his time without any further problems.  The board found the applicant unacceptable for further retention in the military because of frequent incidents of a discreditable nature with civil or military authorities and recommended that he be discharged because of misconduct with an under other than honorable conditions discharge.

13.  On 20 February 1979, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, due to misconduct, waived rehabilitative transfer, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

14.  His DD Form 214 shows, on 27 February 1979, he was discharged under the provisions of chapter 14, Army Regulation 635-200, for misconduct – frequent incidents of a discreditable nature with military authorities, with an under other than honorable conditions characterization of service, in the rank of private/E-1.  This form further shows he completed 2 years, 9 months, and 
4 days of creditable active service, with time lost from 16 to 21 March 1977.  

15.  On 10 May 2001, the ABCMR denied his petition for an upgrade of his discharge.

16.  His records are void of any evidence and he has not provided sufficient evidence that shows he was ever diagnosed with or treated for post-traumatic stress disorder (PTSD) or any other mental health disorder while serving in the Army.

17.  The applicant provides several character letters attesting to his favorable post-service conduct and experiences.  He also provides numerous Medical Progress Notes which show he is being treated for various ailments.  Evidence shows the applicant requested a referral for PTSD on 25 April 2006; however, his records and the evidence he provided fail to show a diagnosis of PTSD.  He further provides a questionnaire of unknown origin designed to assist an attorney or paralegal in deciding whether he or she could help in attempting to upgrade his discharge.  In the document, the applicant states:

* he believes he was discharged due to 5 days of lost time
* his platoon sergeant major stated as long as he kept out of trouble his discharge would be automatically upgraded
* he did not receive counsel, was not told what type of discharge he was receiving, and he believes he was denied his rights

18.  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 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, at the time an undesirable discharge was considered appropriate.

	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 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.

19.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  The version of the regulation in effect at the time stated Item 30 shows mandatory entries.  One of those entries pertained to time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after expiration term of service will be entered.  Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded was carefully considered and determined to be without merit.




2.  The evidence of record shows the applicant displayed a pattern of misconduct and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  His pattern of misconduct was substantial enough to effect immediate elimination.  Accordingly, his immediate commander initiated separation action against him and he was accordingly discharged.

3.  The available evidence shows his duty performance was tarnished by a history of negative counseling, drug use, multiple instances of NJP, and a bar to reenlistment.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His discharge is commensurate with his overall record of military service.

4.  The applicant's allegation that his discharge would be automatically upgraded as long as he kept out of trouble is unsubstantiated.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told his undesirable discharge would be upgraded.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  The applicant had 5 days of lost time, which is required to be listed on the DD Form 214 even if the time was later made up.  There is no evidence that he made up this lost time, even if so, the requirement that it be listed on the DD Form 214 remains valid.

6.  Although the applicant appears to suggest he was suffering from PTSD at the time of his discharge, his service records are void of any evidence and he has not provided sufficient evidence that shows he was ever diagnosed with or treated for PTSD or any other mental health condition while serving in an active status.  

7.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.  Therefore, he is not entitled to the requested relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X______  __X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With respect to the issues being reconsidered, 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 to amend the decision of the ABCMR set forth in Docket Number AR2001052934, dated 10 May 2001.

2.  With respect to any new issue, 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)                                         AR20140016721



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ABCMR Record of Proceedings (cont)                                         AR20140016721



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