IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009320 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009320 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. IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009320 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 upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states, in effect: * he was a decorated Soldier who was accused of something wrong * toward the end of his career, he faced a list of problems * he referred himself into the alcohol program and successfully completed the course * he caught chicken pox while in Honduras (1995) and was not treated by a doctor * he started suffering from depression and anxiety, and was then accused of hurting his daughter * his daughter was unjustly taken from him, and was returned the next day * he was not convicted of hurting his daughter, but he was thereafter continuously antagonized by his first sergeant * after he was discharged, he wanted nothing to do with the Army; he now realizes he needs the Army * he has continued to suffer from anxiety and depression 3. The applicant provides: * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 March 1996 * an extract from VA medical records 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 27 March 1991. 3. He accepted nonjudicial punishment on two occasions: * 14 December 1993 - found drunk on duty on 24 November 1993 * 4 April 1995 - for driving a car while drunk on 7 November 1994 4. On 23 June 1995, an anonymous caller notified the Provost Marshal's Office of a domestic disturbance involving the applicant and his spouse. 5. On 19 July 1995, the applicant brought his 7-month old daughter to his supporting military hospital. She was diagnosed as suffering from non-accidental trauma caused by a significant blow to the head resulting in multiple skull fractures. 6. On 16 August 1995, the applicant underwent a mental status evaluation conducted by a psychiatrist. He was found to be mentally responsible and within normal limits for all areas evaluated. He was deemed to be psychiatrically cleared for any administrative action thought to be appropriate by his command. 7. On 12 December 1995, his commander notified him that action was being initiated to separate him under the provisions of chapter 14 (Separation for Misconduct), paragraph 14-12b (Pattern of Misconduct). The basis for this action was the NJP the applicant had received on 14 December 1994 and 4 April 1995. Also noted was that he had received numerous counselings for various offenses. 8. On 13 December 1995, he consulted with legal counsel. He acknowledged he had been advised by his commander of the basis for the contemplated separation action, and that it was for a pattern of misconduct. He was further advised of the rights available to him, and the effect of any action taken by him in waiving his rights. He: * declined to have his case considered by an administrative separation board, and waived his right to personally appear before the board * intended to submit a statement in his own behalf (that statement is not available for review) * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions 9. On 22 February 1996, the applicant again affirmed he waived his right to have his case considered by an administrative separation board. On 7 March 1996, his legal counsel, a Judge Advocate General (JAG) officer, confirmed in a written statement she and another JAG officer had both advised the applicant of the basis of his contemplated administrative separation as well as the least favorable characterization of service that was possible. She stated the applicant had personally chosen to waive both his right to present his case and to personally appear before an administrative separation board. 10. On 29 February 1996, the separation approval authority approved the applicant's unconditional waiver of his right to have his case considered by an administrative separation board. Additionally, the applicant's discharge under the provisions of paragraph 14-12b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was approved, and the separation authority directed the issuance of an under other than honorable conditions discharge. On 29 March 1996, the applicant was discharged accordingly. 11. His DD Form 214 shows he was discharged under other than honorable conditions, by reason of misconduct. The separation authority was Army Regulation 635-200, paragraph 14-12b. He was awarded or authorized: * Army Achievement Medal * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar 12. There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge. 13. The applicant provides an extract from his VA medical records which include references to a list of medical conditions which include anxiety and depression. The records also indicate the listed medical conditions are not considered as being service-connected. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14, paragraph 14-12b, in effect at the time, states members are subject to separation under this provision when they have a pattern of misconduct involving: * acts of discreditable involvement with civil or military authorities * conduct which is prejudicial to good order and discipline b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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: 1. The evidence of record shows the applicant displayed a pattern of misconduct consisting of various instances of alcohol abuse as well as domestic violence. Accordingly, his chain of command initiated separation action against him. 2. He was advised of his rights, consulted with legal counsel, and submitted an unconditional waiver of having his case presented before an administrative separation board. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. In connection with his separation processing, he underwent a mental status evaluation wherein he was found mentally responsible and all evaluated areas were within normal limits. Nowhere in his service records does it show that he suffered from any behavioral health issues related to anxiety or depression. Likewise, he does not provide any evidence that a behavioral health issue caused his misconduct. 4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Based on his record of indiscipline, the applicant's service does not appear to have been consistent with the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009320 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009320 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2