RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 June 2007
      DOCKET NUMBER:  AR20070000278


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. LaVerne M. Douglas            |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 due to his mental health.

2.  The applicant states, in effect, that he was never screened for mental
health issues when he enlisted.  He further states that he suffered from bi-
polar (manic and depressive) and attention deficit disorder.

3.  The applicant provides a copy of his psychological evaluation, dated
12 December 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 April 1981.  The application submitted in this case was
received on 26 December 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 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 on 13 May 1980, for a period
of
3 years.  He completed the required training and was awarded military
occupational specialty 11B (Light Weapons Infantryman).  The highest rank
he attained while serving on active duty was Private (PV1), pay grade E-1.


4.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.

5.  On 15 October 1980, nonjudicial punishment (NJP) was imposed against
him for being absent from his place of duty.  His punishment consisted of a
reduction to the pay grade of E-1 (suspended for 90 days), a forfeiture of
pay and extra duty.

6.  On 2 January 1981, under a new commander, NJP was imposed against him
for failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay, restriction and extra duty.
7.  On 27 January 1981, NJP was imposed against him for breaking
restriction.  His punishment consisted of a reduction to the pay grade of E-
1, extra duty and restriction.

8.  On 29 January 1981, NJP was imposed against him by the battalion
commander for being AWOL from 4 January 1981 to 13 January 1981.  His
punishment consisted of a forfeiture of pay, extra duty and restriction.

9.  On 4 February 1981, the applicant underwent a mental status evaluation.
 The applicant was found to have normal behavior, to be fully alert, his
mood or affect was unremarkable, he has a clear thinking process, his
thought content was normal, and his memory was good.  The evaluation also
found that the applicant had the mental capacity to understand and
participate in the proceedings, was mentally responsible, and there was no
psychiatric disorder evidenced at the time he was evaluated.  He was
cleared for separation

10.  On 12 December 2005 the applicant was referred by the Office of
Disability Determinations, Florida Department of Health for a clinical
interview and personality testing to determine if he has a mental or
cognitive disability which would qualify him for Social Security Disability
remuneration.  The evaluation determined that the applicant appeared to
have severe depression and a generalized anxiety disorder, and Bipolar I
disorder.  The applicant’s prognosis was poor because of chronic
psychopathologies and chronic pain and ongoing physical limitations.

11.  A review of the available records, to include his counseling sheets,
shows no indication that he had mental problems or that he even discussed
having mental problems with anyone.  The counseling statements indicate
that he simply did not want to be in the Army, that he did not want to be
told what to do or to come to work.

12.  On 17 March 1981, the applicant's commander initiated a recommendation
to discharge the applicant for misconduct under the provisions of Army
Regulation 635-200, paragraph 14-33b(1) for his involvement in frequent
incidents of a discreditable nature.  He cited as the basis for his
recommendation the applicant's disciplinary record and his failure to
respond to numerous counseling sessions.

13.  The applicant was advised of his rights and was ordered by the
commander to go and see a lawyer.  The applicant refused the order and
indicated in writing that he did not want to see a lawyer about the
proposed discharge.  He waived all of his rights and elected not to submit
matters in his own behalf.
14.  The appropriate authority (a major general) approved the
recommendation on 3 April 1981 and directed that he be discharged under
other than honorable conditions.

15.  Accordingly, he was discharged under other than honorable conditions
on 15 April 1981, under the provisions of Army Regulation 635-200,
paragraph     14-33b(1) for misconduct due to his frequent involvement in
incidents of a discreditable nature with civil or military authorities.  He
had served 10 months and 26 days of total active service and had 8 days of
lost time due to AWOL.

16.  On 5 June 1981, he applied to the Army Discharge Review Board (ADRB)
for an upgrade of his discharge.  He contended at that time that his
contract had been breeched by the Army because he signed up to be an armor
crewman and instead received infantry training.  He contended that he was
innocent of any wrongdoings and that he was a good soldier.  The ADRB
determined that the applicant had originally contracted for training as an
armor crewman; however, he changed his option before enlistment for
infantry training and assignment to Fort Carson.  The ADRB opined that he
was not innocent of any wrongdoings, based on his disciplinary record and
that his administrative discharge was both proper and equitable under the
circumstances.  The ADRB voted unanimously to deny his request on 4 March
1982.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
include minor infractions, a pattern of misconduct, frequent involvement in
incidents of a discreditable nature with civil and/or military authorities,
commission of a serious offense, conviction by civil authorities, desertion
or absence without leave.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.  Additionally, there was not then, nor is there
now, any provisions for an automatic upgrade of such a discharge.

18.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the    3-year limit on filing to
the Army Board for Correction of Military Records (ABCMR) should commence
on the date of final action by the ADRB.  In complying with this decision,
the ABCMR has adopted the broader policy of calculating the 3-year time
limit from the date of exhaustion in any case where a lower level
administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge be upgrade because of a
chemical imbalance and the injustice done due to lack of representation at
discharge was found to be without merit.

2.  There is no evidence in the applicant’s record that shows he had any
mental health issues nor did the applicant give any indication that he had
mental health issues during his active duty enlistment or at during his
chapter physical.  Therefore, he is not entitled to an honorable or general
discharge.

3.  The evidence of record shows that the applicant was convicted during a
special courts-martial trial and received three nonjudical punishments.

4.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Further, the applicant failed to provide evidence that
his conduct since his discharge has been so meritorious as to warrant an
upgrade of his discharge as a matter of equity.  Therefore, he is not
entitled to an honorable or general discharge.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 March 1982;
therefore, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 3 March 1985.  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

____LMD   __EEM _  ___RMN__  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.




            __LaVerne M. Douglas____
                    CHAIRPERSON







                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/06/12                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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