RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 August 2004
      DOCKET NUMBER:  AR2004100619


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert J. Osborn, II          |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the character of his service be
upgraded.

2.  The applicant states, in effect, that he is bipolar and has been most
of his life.  He was undiagnosed during his military tour and the actions
that resulted in his discharge are characteristic of bipolar disorder.
With proper diagnosis and treatment, his character of service would have
been different.

3.  The applicant provides a letter addressed "To Whom It May Concern" from
the applicant's treating psychologist and a VA (Department of Veterans
Affairs) Form 21-4138 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 16 September 1975.  The application submitted in this case is
dated 28 October 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army for 3 years on 4 October
1972.  On 24 July 1974, he was honorably discharged, at Fort Hood, Texas,
for the purpose of immediately reenlisting in the Regular Army for 5 years
for a station of choice reenlistment option with a guaranteed reassignment
to Fort Bragg, North Carolina.

4.  The applicant was assigned to the Company F, 782nd Maintenance
Battalion, 82nd Airborne Division, Fort Bragg, North Carolina, on 21
November 1974.

5.  On 6 January 1975, the applicant received a letter of reprimand for
being tardy to the 0730 hours formation on 30 December 1974.  The applicant
acknowledged the letter of reprimand and elected not to make a statement
in his own behalf.

6.  On 27 May 1975, the applicant departed from his organization in an
absent without leave (AWOL) status and was dropped from the rolls of the
organization with an effective date of 28 June 1975.

7.  On 3 July 1975, the applicant was apprehended by military authorities
at the Charleston Naval Station, Charleston, South Carolina, and was
transported to the Provost Marshal's Office at Fort Jackson, South
Carolina.  The applicant was processed and was sent to the Personnel
Control Facility (PCF), Fort Gordon, Georgia.  He arrived at Fort Gordon on
15 July 1975.

8.  When he arrived at Fort Gordon, the applicant completed a FG Form 6139,
Casual Data Card.  In Item 11, of the form, the applicant entered that the
reason for his absence without leave was that he, "Can't stand Ft. Bragg.
Wants out."

9.  The evidence shows that court-martial charges were brought against the
applicant for the above absence on 15 July 1975.

10.  The evidence of record shows that on 16 July 1975, the applicant
consulted with counsel and submitted a request for discharge from the
service under chapter 10, Army Regulation (AR) 635-200, for the good of the
service.  The applicant submitted a statement in his behalf.  In this
statement, the applicant stated, in effect, that he disliked the Army with
a great passion.  He stated that he didn't feel that he wanted to be
confined any longer and he didn't like the way that prisoners were treated
and he felt that the military penal system left something to be desired.
The applicant finally stated that he knew that this [the chapter 10
discharge] was the only type discharge he could get with charges pending
against him and he couldn't bear to go through the court-martial process.

11.  In his request, the applicant acknowledged that he had not been
subjected to coercion with respect to his request for discharge and he had
been advised of the implications attached to it.  He stated that he
understood that if discharged, under other than honorable conditions, and
furnished an undesirable discharge, that he understood he would be deprived
of many or all Army benefits and that he may be ineligible for many or all
benefits administered by the Veterans Administration and that he could be
deprived of his rights and benefits as a veteran under both Federal and
State law.  The applicant also understood that he might expect to encounter
substantial prejudice in civilian life because of an undesirable discharge.
12.  Before applying for discharge, the applicant had not been the subject
of a court-martial and he had not been subjected to non-judicial punishment
under the provisions of Article 15, of the UCMJ (Uniform Code of Military
Justice).

13.  The applicant's chain of command unanimously recommended approval
of his request and recommended that he be discharged with an undesirable
discharge.

14.  The separation authority, a brigadier general, approved the
applicant's discharge on 22 August 1975 and directed that he be reduced to
the lowest enlisted grade and that he be issued an undesirable discharge.

15.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 16 September 1975, under the provisions of Army Regulation (AR) 635-
200, Chapter 10.  The separation code that was applied to his DD Form 214
is, "KFS" (conduct triable by court-martial).  The applicant's character of
service was characterized as, "Under Other than Honorable Conditions."

16.  On the date of his discharge, the applicant had completed 2 years,
9 months, and 23 days active military service on both his enlistments.

17.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows that he was awarded the National Defense Service Medal; the
Presidential Unit Citation; and the Sharpshooter Marksmanship Qualification
Badge, with Rifle Bar.  The record contains no documentary evidence of acts
of valor, achievement, or service warranting special recognition.

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

19.  In the letter, dated 22 August 2003, addressed "To Whom It May
Concern," submitted by the applicant's psychologist, in support of the
applicant's request for an upgrade of the characterization of his
discharge, he states that the applicant had been a patient for the period
from 30 September 1997 through 3 May 2003 and that he had received
psychotherapy for treatment for a bipolar disorder.  The applicant was
hospitalized on more than one occasion and was treated in a partial
hospitalization program several times.  His predominant mood was depression
with some minor manic episodes.  He was often irritable and talked
negatively about authority figures during manic episodes.  The psychologist
believed that the applicant's manic episodes were moderated by his
medications.

20.  In the letter from the psychologist, he adds that the applicant
described his discharge from the Army on more than one occasion.  He
apparently went AWOL and was very belligerent with his superiors at that
time.  The psychologist admits that he was not present at the time of the
applicant's discharge but that the described behavior is consistent with a
manic episode and that the manifestation of these symptoms was consistent
with his age and the stress of duty.

21.  A DA Form 3975, Military Police Report, which was completed on the
applicant's arrival at Fort Gordon, shows in Item 13 (Behavior), that he
was cooperative.  The other choices available to describe the applicant's
demeanor are: "uncooperative" and "belligerent".

22.  On 17 July 1975, the applicant underwent a medical examination in
conjunction with his discharge.  A Standard Form (SF) 88, Report of Medical
Examination, was completed to document the results of this examination.
The applicant was found to be qualified for separation.  Item 76a (Physical
Profile) shows that the applicant was given the following numerical ratings
in the physical profile serial: P-1, U-1, L-1, H-1, E-1 and S-1.

23.  The applicant also completed a SF 93, Report of Medical History.  On
this form, the applicant reported that he was not experiencing depression
or excessive worry and that he did not have any nervous trouble of any
sort.

24.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 10 of that regulation provides, in pertinent
part, that a member who has committed an offense or offenses for which the
authorized punishment includes a punitive discharge may submit, at any time
after the charges have been preferred, a request for discharge for the good
of the service, in lieu of trial by court-martial.  A discharge under other
than honorable conditions is normally considered appropriate, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the soldier's overall record and if the
soldier's record is so meritorious that any other characterization clearly
would be improper.

25.  AR 635-200, paragraph 3-7, 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.  Whenever there
is doubt, it is to be resolved in favor of the individual.

26.  The above referred to regulation also defines a general discharge as 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.  A
characterization of under honorable conditions may be issued only when the
reason for separation specifically allows such characterization.

27.  AR 40-501, chapter 7, physical profiling, provides that the basic
purpose of the physical profile serial system is to provide an index to the
overall functional capacity of an individual and is used to assist the unit
commander and personnel officer in their determination of what duty
assignments the individual is capable of performing, and if
reclassification action is warranted.  Four numerical designations (1-4)
are used to reflect different levels of functional capacity in six factors
(PULHES): P-physical capacity or stamina, U-upper extremities,
L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.
Numerical designator 1 under all factors indicates that an individual is
considered to possess a high level of medical fitness and, consequently, is
medically fit for any military assignment (emphasis added).  Numerical
designators 2 and 3 indicate that an individual has a medical condition or
physical defect which requires certain restrictions in assignment within
which the individual is physically capable of performing military duty.
The individual should receive assignments commensurate with his or her
functional capacity.  Numerical designator 4 indicates that an individual
has one or more medical conditions or physical defects of such severity
that performance of military duty must be drastically limited.  The
numerical designator 4 does not necessarily mean that the individual is
unfit because of physical disability as defined in Army Regulation 635-40.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the
commission of an offense punishable with a punitive discharge under the
UCMJ.

2.  After consulting with defense counsel, the applicant voluntarily, and
in writing, requested separation from the Army under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service, to avoid trial
by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offense under the UCMJ.  There is no indication that the request
was made under coercion or duress.

3.  There is no evidence to indicate that the applicant was suffering from
a mental or emotional disorder.  The evidence shows that the applicant
disliked the Army with a great passion and could not stand Fort Bragg and
wanted out of the Army.  It should be noted that the applicant was not
treated and a diagnosis of a bipolar disorder was not made for 22 years
after he was discharged from the Army.

4.  The applicant’s voluntary request for separation, was administratively
correct and in conformance with applicable regulations.  The evidence shows
that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

5.  While he may now believe that he made the wrong choice, the applicant
should not be allowed to change his mind at this late date.  Additionally,
it is noted that it was the applicant who requested a discharge for the
good of the service to avoid the possibility of a punitive discharge and of
having a felony conviction on his records.

6.  The evidence shows that the applicant was aware, before requesting
discharge, that the characterization of service for this type of discharge
is normally Under Other Than Honorable Conditions.

7.  The reason for discharge and the characterization of service appear to
be both proper and equitable.  Further, the evidence shows that the quality
of his service did not meet the standards of acceptable conduct and
performance expected of Army personnel; therefore, the applicant is not
entitled to an upgrade of his undesirable discharge to an under honorable
conditions (general) discharge, or to an honorable discharge.

8.  In order to justify correction of a military record, the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

9.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his undesirable discharge.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 September 1975; therefore, the time
for
the applicant to file a request for correction of any error or injustice
expired on 15 September 1978.  However, the applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__slp___  __rjo___  __ecp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  Shirley L. Powell
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004100619                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19750915                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |Conduct Triable by Court-Martial        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  708                 |144.7100                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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