RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20060015891 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. Thomas E. O’Shaughnessy

Member

Mr. James R. Hastie

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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, while in the U.S. Army he was bipolar and did not know it.  He also states, in effect, that he was young, went through a divorce, his father died and, as a result, he received a compassionate reassignment to Fort Benning, Georgia.  He further states, in effect, that he was a good Soldier, never caused problems and never was punished under Article 15, until he failed a urinalysis test.  The applicant concludes by requesting that his character of service be judged on his job performance and not on what he did after hours.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated
7 November 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 February 1990, the date of his discharge from the Army.  The application submitted in this case is dated 7 November 2006.

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 limitations 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's military service records show that he enlisted in the U.S. Army Reserve for a period of 6 years on 11 August 1987.  The applicant's medical entrance examination found no physical defects or abnormalities.  The applicant subsequently enlisted and entered active duty in the Regular Army for a period of 3 years on 6 October 1987.  At the time of his entry on active duty the applicant was 18 years old.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 88M (Motor Transport Operator).  The highest grade the applicant attained was specialist four/pay grade E-4.

4.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) of the DA Form 2-1 shows that the applicant served overseas in the Republic of Korea (ROK) from 9 March 1988 through 4 March 1989.  This item also shows that the applicant was credited with completion of a normal tour (i.e., 12 months in the ROK).  Item 35 (Record of Assignments) shows that the applicant departed the ROK on permanent change of station and reported to Fort Benning, Georgia, on 24 March 1989.

5.  The applicant's military service records contain a DD Form 93 (Record of Emergency Data), dated 29 March 1989.  This document shows, in pertinent part, that the applicant was divorced, had a 1 year old son, and that his father was deceased.

6.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 15 November 1989.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for wrongfully using a Schedule 1 controlled substance between 18 September 1989 and 18 October 1989.  The punishment imposed was reduction to the grade of E3 (suspended for 120 days), forfeiture of $150.00 per month for 2 months, 30 days extra duty, and an oral admonition.

7.  The applicant's military service records contain a copy of a DA Form 2627, dated 26 January 1990.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for wrongfully using marijuana between on or about 13 December 1989 and 26 December 1989.  The punishment imposed was reduction to the grade of private (E-1), forfeiture of $362.00 per month for 2 months, 45 days extra duty, and 45 days restriction to place of duty, barracks, chapel, and post exchange.

8.  On 8 February 1990, the company commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense (i.e., abuse of illegal drugs) and that he was recommending the applicant receive a general discharge under honorable conditions.  The applicant was also advised of his rights.  The commander's recommendation for separation also included 7 DA Forms 4856 (General Counseling Forms) spanning the period
13 July 1989 to 7 February 1990 that show the applicant was provided performance counseling by noncommissioned officers in his chain of command that was directed to improve his poor performance of failing to report to duty at the designated time and place on 3 occasions and for misconduct related to his improper use of alcohol and drugs.
9.  The unit commander recommended the applicant's separation from service and indicated that the "[applicant's] misconduct in the abuse of illegal drugs clearly indicates his lack of discipline and potential for useful service under conditions of full mobilization."  The unit commander recommended separation of the applicant with a general discharge under honorable conditions.

10.  A DA Form 3822-R (Report of Mental Status Evaluation) was attached to the separation action, which was prepared by the medical doctor who examined the applicant, indicating that the applicant had the mental capacity to understand and participate in the proceedings.  In the Remarks section of the document the noncommissioned officer in charge of psychological services and the physician made note that, "[t]his individual was seen for a Mental Status Evaluation as part of a physical examination for administrative discharge from the Army.  No mental health problems were seen which require treatment or disposition through medical channels.  This individual is cleared for any administrative and disciplinary action deemed appropriate by Command."   

11.  On 12 February 1990, the applicant requested and consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, and of the rights available to him.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

12.  On 13 February 1990, the battalion commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

13.  The separation authority approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12, for a pattern of misconduct, and that he be issued a general discharge under honorable conditions. Accordingly, the applicant was discharged on 22 February 1990.

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms that the applicant was issued a general discharge under honorable conditions.  At the time of his discharge the applicant was 21 years old and had completed 2 years, 4 months, and 17 days active service during the period under review.

15.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

16.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

17.  The National Institute of Mental Health's (NIMH) online medical reference service at http://www.nimh.nih.gov/HealthInformation/bipolarmenu.cfm describes Bipolar Disorder, also known as manic-depressive illness, as a serious medical illness that causes shifts in a person's mood, energy, and ability to function.  It states that, different from the normal ups and downs that everyone goes through, the symptoms of bipolar disorder are severe.  Bipolar disorder causes dramatic mood swings from overly "high" and/or irritable to sad and hopeless, and then back again, often with periods of normal mood in between.  Severe changes in energy and behavior go along with these changes in mood.  The periods of highs and lows are called episodes of mania and depression.  This condition is also called manic-depressive illness and may be caused by a chemical imbalance in the brain.  Information shows that the Bipolar disorder sometimes runs in families.  If a person has a parent who has bipolar disorder, they have a greater chance of having it.  Both men and women can have bipolar disorder and people of all ages can have it.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This document shows, in pertinent part, that 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, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

19.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

20.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because he was bipolar and did not know it.  He also contends, in effect, that he was young, went through a divorce, and his father died, which traumatized him and contributed to his pattern of misconduct.  The applicant further contends, in effect, that his character of service should be judged on his job performance and not on what he did after hours.

2.  The evidence of record fails to show that the applicant was diagnosed with bipolar disorder or any other mental disorder upon entry into the U.S. Army.  In addition, the evidence of record shows that at the time the applicant was being processed for administrative separation from the Army, his thinking process was clear and thought content normal.  The evidence of record also shows that he possessed the mental and emotional capacity to understand and participate in board and other legal proceedings.

3.  The evidence of record shows that the applicant was 18 years old when he entered active duty and was over 21 years of age when he received non-judicial punishment for the wrongful use of marijuana just prior to his discharge.  There is no evidence that indicates the applicant was any less mature or that he experienced any more significant, personal life-changing events than other Soldiers of the same age who also served in the U.S. Army during this period of time and successfully completed their military service commitment.


4.  During the period of service under review (i.e., from 6 October 1987 to
22 February 1990), the applicant’s military service records show a pattern of misconduct in that he failed to report to duty at the designated time and place on at least 3 occasions, was counseled on his improper use of alcohol, and twice received non-judicial punishment for his use of illegal drugs.  Thus, the evidence of record shows that the applicant’s record of service, both on and off duty, did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

5.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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 22 February 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
21 February 1993.  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

____HOF_  ___TEO_  ___JRH _  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.




_____  Hubert O. Fry_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015891
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/22
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19900222
DISCHARGE AUTHORITY
AR 635-200, Paragraph 14-2b
DISCHARGE REASON
Misconduct - Pattern of Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.