RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             OCTOBER 7, 2004
      DOCKET NUMBER:     AR2004103070


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Patrucj H. McGann Jr.         |     |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 that his discharge under other than honorable
conditions be upgraded.

2.  The applicant states that he suffers from schizophrenia, which was
aggravated by military service.  He states that he was not adequately
treated for his mental illness while he was in the Army; however, he was
subjected to military justice because of his mental illness.  He states
that, to this day, he is being treated for and dealing with a mental
condition that he believes does not warrant the type of discharge that he
received.  He goes on to state that he has struggled with mental illness
all of his adult life and that he truly regrets that he was unable to
complete his service obligation.  He concludes by stating that he tries to
live his life by giving something back to the community were he lives and
he asks that he not be judged too harshly.

3.  The applicant provides in support of his application, a note from a
doctor written on a prescription pad dated 28 August 02, which indicates
that, according to him (the applicant), he was not mentally ill at the time
that the entered into the military; a letter dated 6 November 1989, from
Cowan Psychiatric Associates, Ltd, which indicates that he is currently on
medication for hallucinations, for pain and for depression; a letter from a
church reverend supporting his request for a discharge upgrade; and copies
of portions of his military and medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 21 December 1981.  The application submitted
in this case is dated 26 November 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.  On 17 December 1980, the applicant underwent a medical examination for
the purpose of enlistment in the Army.  On the Report of Medical History
(SF 93) that he completed at the time of his examination, he indicated that
he was in good health and that he was not taking medications.  On the same
form, he indicated that he had never been treated for a mental condition.

4.  On 15 January 1981, he enlisted in the Army for 3 years in the pay
grade of E-1.  He successfully completed his training as a tactical wire
operations specialist.

5.  The applicant was seen at Troop Medical Clinic #1, on 23 January 1981,
for back pain during his first week of training.  His Chronological Record
of Medical Care shows that he stated that he wanted out of the service and
that he was once disqualified for enlistment when he was 17 years old.  He
went on to state that when he was 20 years old he fell about 20 feet and
was hospitalized for 1 week.  His Chronological Record of Medical Care
shows also shows that he was overweight.

6.  The applicant completed a second SF 93 pm 30 March 1981, which
indicates that the form was being completed due to the loss of his Army
records.  On this SF 93 he again indicated that he had never been treated
for a mental condition.

7.  On 6 July 1981, the applicant was seen at the community health activity
after he reported that he was experiencing auditory hallucinations and
paranoid/persecutory flavor.  In the Chronological Record of Medical Care,
he reported that he had previously been treated for psychiatric
hallucinations and delusions prior to his enlistment and that he was
experiencing the same symptoms.  The attending physician noted that at that
time, he did not appear delusional; however, loose associations were noted.
 His mood was depressed, affect blunted and his psychomotor was in no acute
distress.  The physician further noted that the applicant reported suicidal
ideation and intent at the time; however, he did not appear suicidal at
that time.  The attending physician’s impression was that the applicant was
suffering from schizophrenia.  He was medicated and scheduled for an
emergency evaluation.

8.  An Inpatient Treatment Record Cover Sheet shows that on 28 July 1981,
he was returned to duty after being hospitalized for 11 days, and he was
diagnosed as having a borderline personality manifested by psychotic like
symptoms when under stress.



9.  Doctor’s progress notes dated 11 August 1981, show that the applicant
was followed for a period of 1 week by occupational therapy with the
primary focus toward observation and reality feedback.  It was noted that
he seemed moody and at times he was uncooperative.  He was returned to duty
with no further follow-up indicated.

10.  On 18 August 1981, the applicant went absent without leave (AWOL) and
he remained absent until he surrendered to military authorities on 17
November 1981, in Minneapolis, Minnesota.

11.  On 19 November 1981, the applicant was notified that charges were
pending against him for being AWOL.  He acknowledged receipt of the
notification on 20 November 1981.  After consulting with counsel, he waived
his rights and he submitted a request for discharge under the provisions of
Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial.  He also underwent a mental status evaluation and his behavior was
normal, he was fully alert, he was fully oriented, his mood was
unremarkable, his thought content was normal and his memory was good.  The
physician determined that the applicant was mentally responsible; and that
he had the capacity to understand and participate in proceedings; and that
he met the retention requirements of chapter 3, of Army Regulation 40-501.

12.  The appropriate authority approved the request for discharge on
3 December 1981.  Accordingly, on 21 December 1981, the applicant was
discharged, under other than honorable conditions, under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service, in lieu
of trial by court-martial.  He had completed 8 months and 8 days of total
active service and he had approximately 91 days of lost time due to AWOL.

13.  The applicant now submits a psychiatric evaluation dated 13 November
2001 and progress notes from an unknown source, which reflects his physical
and mental conditions for the period covering 8 January 2002 through 9 July
2002.

14.  A review of the records fails to show that the applicant ever applied
to the Army Discharge Review Board for an upgrade of his discharge within
that board’s 15-year statute of limitations.

15.  Army Regulation 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 a request for discharge
for the good of the service in lieu of trial by court-martial.  The request
may be submitted at any time after charges have been preferred and must
include the individual's admission of guilt.  Although an honorable or
general discharge is authorized, a discharge under other than honorable
conditions is normally considered appropriate.

16.  Army Regulation 635-200, chapter 5 provides for separation based on
personality disorders.  It states, in pertinent part, that a member may be
separated for a personality disorder (not amounting to disability) that
interferes with assignment to or performance of duty.  Commanders will not
take action prescribed in this chapter in lieu of disciplinary action
solely to spare a member who may have committed serious acts of misconduct
for which harsher penalties may be imposed under the Uniformed Code of
Military Justice.  Separation for personality disorder is not appropriate
when separation is warranted under the provision of chapters 4, 5, (other
than section II), 7, 9, 10, 11, 13, 14 and 15.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted and the Board has
considered the documentation that he has submitted in support of his
application.  However, after a thorough review of his military and medical
records, this Board concludes that the applicant had been treated for a
mental condition prior to his entry on active duty and that he fraudulently
enlisted in the Army when he failed to disclose this information when
specifically asked to do so on his SF 93.  He completed the form twice and
both times he indicated that he had never been treated for a mental
condition.  Months later, during a medical examination, he disclosed to an
Army physician, the fact that he had been treated for a mental condition
prior to his enlistment.  Therefore, it is reasonable to presume that if he
in fact does suffer from a mental condition, it existed prior to his entry
on active duty.




4.  Additionally, charges had been preferred against the applicant for
being AWOL and in accordance with the applicable regulation; he committed a
serious act of misconduct, which would have resulted in disciplinary action
being taken against him.  He should not have processed out of the Army for
having a personality disorder solely to spare him from harsher penalties.

5.  His request for a chapter 10 discharge, even after appropriate and
proper consultation with a military lawyer, tends to show he wished to
avoid the
court-martial and the punitive discharge that he might have received.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 December 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 December 1984.  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

wtm_____  pms_____  pm_____  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.




            ____Walter T. Morrison____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004103070                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/07                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000.0000/ IN LIEU OF TRIAL BY CM   |
|2.  708                 |144.7100.0000/AWOL                      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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