IN THE CASE OF:  	  

		BOARD DATE:  19 March 2015	  

		DOCKET NUMBER:  AR20150000680 


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 discharge (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states:

	a.  He was removed from the Army with a GD due to a drinking incident that happened in Afghanistan in November 2009.

   b.  He has now been assessed with post-traumatic stress disorder (PTSD) with a Global Assessment of Functioning (GAF) score over fifty, of which drinking was his biggest symptom.
   
   c.  He was removed from the Army for a symptom of an illness he sustained during military service and now he can't even obtain a decent job or the Veteran symbol on his driver's license because he was likewise denied his GI Bill benefits.
   
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veteran Affairs (VA) letter dated 28 May 2014
* VA Rating Decision
* National Personnel Records Center letter dated 17 December 2014

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 record shows he enlisted in the Regular Army on 12 July 2005.  He was trained in and held military occupational specialty 18C (Special Forces Engineer Sergeant).

3.  His official military personnel file (OMPF) includes two DA Forms 4856 (Developmental Counseling Form) which shows he was formally counseled:

   a.  On 27 September 2009, for – 
   
* installing unapproved software on a government computer
* stating he read the information awareness user agreement and then violating that agreement
* lying to the fact he read the agreement and understood it
   
   b.  On 19 October 2009, for – 
   
* failing to following verbal orders numerous times
* while in a combat environment, failing to assist SGM M_____ with his duties and responsibilities
* as a special forces soldier, continuing to fail to understand his surroundings in a combat environment

4.  Headquarters, 3d Battalion, 7th Special Forces Group, Memorandum dated 21 January 2009 [sic] (2010), shows the investigating officer of a Commander's Inquiry Investigation found the applicant:

   a.  violated a general order by being under the influence on the morning of 26 November 2009;
   b.  wrongfully appropriated Operational Funds (OPFUND) in the sum of $2500.00; and
   
   c.  violated established United States Army Special Forces, OPFUND regulations by spending $400.00 of the $2500.00 in question for personal gain.

5.  His OMPF contains a letter of reprimand (LOR) issued him for drinking alcohol and vomiting on himself and in the barracks hallway, causing a disruption to others, and being intoxicated on 26 November 2009.  On 1 February 2010, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) disobeying a lawful general order for wrongfully consuming alcohol.

6.  On 25 February 2010, the applicant underwent a mental status evaluation which revealed:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings
* he was psychiatrically cleared for any administrative deemed appropriate by the command
* was screened for PTSD and mTBI as part of a standard screening process an found not to meet the criteria for either diagnosis at that time

7.  On 7 April 2010, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance with a GD.  The unit commander cited the applicant’s repeated counseling on his inability to perform as a Special Forces Soldier and indicated the applicant was given an opportunity to perform at every level in the Battalion in which he failed each time, as the basis for the proposed separation action.

8.  On 7 April 2010, the applicant acknowledged receipt of the separation action, consulted with legal counsel, and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected not to submit a statement on his own behalf.  He did not have 6 years of service and as a result he was not entitled to have his case heard by an administrative board.

9.  On an unknown date, the battalion commander requested a waiver of the rehabilitative requirements, under the provisions of paragraph 1-16d, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  On 29 April 2010, the separation authority approved the applicant's separation, directed issuance of a GD, and waived further counseling and rehabilitation requirements.

10.  On 9 July 2010, the applicant was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows he was discharged by reason of "unsatisfactory performance” with a separation program designator (SPD) code of “JHJ” and that he received a GD.  

11.  On 28 September 2011, the Army Discharge Review Board, after carefully considering the applicant’s case, concluded that his discharge was proper and equitable, and it voted to deny his request to upgrade his discharge.

12.  The applicant provides a VA rating decision which shows he was granted an increased evaluation for his service connected PTSD from 10 percent (%) to 50% on 8 May 2010.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  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 applicant contends that his GD should be upgraded to an HD because his drinking was symptomatic of his PTSD condition incurred as a result of his active duty service.  The evidence of record confirms that the applicant was separated from service under the provisions of Chapter 13, Army Regulation 635-200, by reason of "unsatisfactory performance" and not from any actions resulting from use of alcohol as he claims.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant was provided an opportunity to consult with legal counsel.  He was advised of the basis for the contemplated separation action and of the rights available to him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Further, while the evidence of record includes an LOR for drinking in violation of a general order while assigned for duty in a combat environment, it also contains a commander's inquiry report which shows his wrongful appropriation of OPFUND, records of formal counseling documenting his failure to follow verbal orders numerous times, wrongful installation of unapproved software on a government computer, lying, and his failure to assist his superior noncommissioned with his duties and responsibilities.  Clearly, the applicant's unsatisfactory performance diminished the overall quality of his service below that meriting a fully honorable discharge.  His service did not support the issuance of an HD by the separation authority at the time of discharge and it does not support an upgrade now.  

4.  In view of the forgoing, there is no basis for granting the applicant's 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 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)                                         AR20150000680





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ABCMR Record of Proceedings (cont)                                         AR20150000680



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