RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20070001199 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson 

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 under other than honorable conditions discharge be upgraded. 

2.  The applicant provided his statement through counsel. 

3.  The applicant provided additional documentary evidence through legal counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge characterization be upgraded to general under honorable conditions and restoration of rank to specialist/pay grade E-4.

2.  Counsel states the command should have known the applicant suffered from undiagnosed severe mental illness, the applicant's leg injury from a military parachute training event caused his undiagnosed mental illness to worsen; the characterization of service is disproportionately punitive, and the applicant was a target of racial discrimination. 

3.  Counsel provides documentary evidence from which shows the applicant is mentally ill and requires court order psychiatric evaluation; 26 pages from psychiatric hospitalization records; 6 pages from military medical health record; a copy of a Good Conduct Medal Certificate; a copy of Certificate of Clearance; and one witness statement. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 September 1992, the date of his discharge.  The application submitted in this case is dated 3 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 records show he enlisted in the Regular Army on 13 September 1988.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 81Q (Printing and Bindery Specialist).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

4.  The applicant's records do not show any significant acts of valor during his military service. 

5.  The applicant's service records do not reveal a disciplinary history prior to charges being filed on 13 September 1992 against the applicant for destroying government property and assault occurring on or about 22 December 1991.  On 13 July 1992, a second set of charges were preferred against the applicant for disrespectful language towards a noncommissioned officer and failure to follow a lawful order on or about 31 May 1992.

6.  On 18 August 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 1 September 1992, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 21 September 1992, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This from further confirms that he completed a total of 4 years and 9 days of creditable active military service.
9.  On 1 December 1995, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  The counsel provided extensive documentary evidence to support this application.  A review of the 26 pages of supporting inpatient medical records showed the applicant was admitted to a veterans hospital after being apprehended by police for endangering himself and society on or about 22 September 2005.  The treating psychiatrist ordered hospitalization for the applicant.

11.  On 23 September 2005, the Veterans Administration Medical Center (VAMC) determined the applicant was not eligible for medical treatment due to his characterization of service.  On 26 September 2005, VAMC personnel contacted a local charity hospital to arrange a hospitalization transfer.  The local charity hospital rejected the transfer request due to the applicant's veterans' status and his current hospital admissions status on an acute psychiatric unit.

12.  On 27 September 2005, the county board of mental health initiated proceedings to obtain a court order directing the applicant's hospitalization.  Records provided show the applicant remained hospitalized through on or about 7 October 2005.

13.  Counsel provided the initial probate court order dated 25 September 2005, ordering the applicant to an initial psychiatric hearing alleging the applicant to be mentally ill and subject to hospitalization by court order.  On 27 September 2005, a court order was issued which shows the applicant is mentally ill and subject to hospitalization.

14.  On 7 October 2005, the VAMC psychiatric staff discussed and documented their concerns that the applicant would require out-patient follow up medical treatment and that he did not have the veteran medical benefits or insurance to seek their recommended out-patient medical treatment.  VAMC documents show VAMC staff were concerned the applicant could be a threat to society based on his mental illness and military training.

15.  The applicant sustained injuries to his right leg during a military airborne training event on or about 18 January 1992.  Counsel provided six pages from the applicant's military medical record.  A review of the applicant's official military medical record shows he sought medical treatment for injuries sustained to his right leg on or about 18 February 1992.  

16.  There is no evidence in the available records which show that the applicant's chain of command was informed of his mental illness.

17.  Counsel provided a military witness statement dated 18 June 1992, for an incident that occurred on or about 31 March 1992.  The witness statement describes the applicant's actions and behavior surrounding alleged drunk driving; excessively loud music coming from his privately owned vehicle; pushing and shoving between the charge of quarters and the applicant; and escaping the building by jumping from a second floor window.

18.  Counsel submitted the applicant's Good Conduct Medal Certificate for the period 13 September 1988 to 12 September 1991 and a copy of the Certificate of Clearance dated 28 March 1990 authorizing the applicant access to secret information during the performance of his military duties.

19.  Army Regulation 635-200 (Personnel Separations), sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  At the time, general or undesirable discharges were normally considered appropriate.

20.  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 (emphasis added), 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.

21.  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.

22.  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.  On behalf of the applicant, counsel contends that his discharge should be upgraded because during the applicant's service in the Army, he was having mental problems and the chain of command should have recognized and directed medical treatment for the problems.

2.  There is no evidence and the applicant has not provided sufficient evidence which shows that he was diagnosed and/or treated for mental health issues while in an active duty status.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence which shows his mental impairments were the cause of his acts of indiscipline.

3.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 1 December 1995.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 30 November 1998.  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

_JEA____  _JLP____  _JRM___  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.




     __James E. Anderholm
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.