RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070006262 


	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. Richard Dunbar

Chairperson

Mr. Chester Damian

Member

Mr. Edward Montgomery

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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he was discharged from a mental institution where an Army physician diagnosed him with acute mixed personality disorder.  He states, in effect, that he was ill when he was discharged and that the injections the Army gave him in his head caused him to change.  He also acknowledges he was discharged due to misconduct for commission of a serious offense.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 22 December 1986, 
DA Form 3647 (Inpatient Treatment Record Cover Sheet) dated 29 August 1986, and excerpts from his outpatient medical records.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 22 January 1985.  He completed basic combat and advanced individual training and was awarded the military occupational specialty 13B (Cannon Crewmember).  The highest rank he attained while serving on active duty was private first class/E3.

3.  The applicant was assigned to Battery B, 5th Battalion, 15th Field Artillery, Fort Ord, California, from 13 May 1985 until his separation.  The applicant's personnel service record was available for the Board to review.  The applicant's complete medical records were not available for the Board to review.  The 
applicant provided excerpts from his personal copy of his medical records, both inpatient and outpatient.  Separation medical documents were available in the applicant's personnel service record for the Board's review.

4.  On 21 May 1985, the applicant sought medical treatment at Fort Ord Medical Treatment Clinic for acne keloidalis nuchae (AKN) which is the occurrence of keloidlike papules and plaques on the occipital scalp and the posterior part of the neck.  Medical records show the applicant was treated for approximately 9 months by applying or injecting liquid nitrogen directly to the tissues at the cellular level affected by the acne keloidalis nuchae.

5.  On 12 March 1986, records show the applicant accepted nonjudicial punishment (NJP) under the summarized provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from B Battery, 5th Battalion, 15th Field Artillery, Fort Ord, California, on 10 February 1986 with the intent to miss a field training exercise.  He was sentenced to 14 days extra duty.

6.  On 3 May 1986, the applicant was arrested and incarcerated in the town of Marina, California for driving under the influence (DUI) and for driving with a blood alcohol level greater than .10.  The applicant's breath test showed a blood alcohol level of .17/.18, which exceeded the established state standard of .10; therefore, the applicant was legally intoxicated. 

7.  On 20 August 1986, the applicant was admitted onto the psychiatric ward of the Silas B. Hays Army Community Hospital, Fort Ord, California.  DA Form 3647 (Inpatient Treatment Record Cover Sheet), provided by the applicant, shows he was medically treated for 9 days then transferred to Letterman Army Medical Center, Presidio, California, on 29 August 1986.  The diagnoses when transferred were acute paranoid disorder and paranoid personality disorder.  The applicant did not provide and there are no medical records or discharge documents available from Letterman Army Medical Center for the Board's review.

8.  Records show the applicant went AWOL from the Medical Holding Company, Letterman Army Medical Center, Presidio, California, from 10 September 1986 to on or about 22 September 1986.

9.  On 1 October 1986, an Army psychologist, per the formal request of the applicant's company commander, medically evaluated the applicant.  The Army psychologist's medical opinion was the applicant had the mental capacity to understand and participate in the separation proceedings and that he was found 
mentally responsive during the examination.  The Army psychologist stated, in pertinent part, that the applicant did not express motivation for continued service or exhibit sustained social and emotional stability.  The Army psychologist's concluding opinion was that the applicant's chain of command could reasonably expect the applicant's future performance to resemble his past performance.  

10.  On 1 October 1986, the Chief of the post Community Mental Health Clinic stated, in pertinent part, that the applicant's past history and his present adjustment difficulties to the military lifestyle were indicative of a constricted social and emotional development that was not commensurate with the applicant's chronological age and physical growth.  The Clinic Chief further wrote that the applicant expressed a lack of motivation and apathy toward the military.  His opinion was the applicant demonstrated developmental personality characteristics that contributed to his lack of adjustment to military life.  The Clinic Chief's medical opinion was that these personality characteristics did not warrant disposition through military medical channels, and he recommended administrative separation from active duty for unsatisfactory performance based on the applicant's expressed lack of motivation, and his social and emotional characteristics being incompatible with military service. 

11.  On 3 October 1986, a medical doctor examined the applicant and the opinion of this medical doctor was the applicant was qualified for separation.  The examining physician did note on Item 25, of Standard Form 93 (Report of Medical History) that the applicant was admitted to inpatient psychiatric care for depression and personality disorder during his initial tour of enlistment.

12.  On 2 October 1986, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for AWOL from the Medical Holding Company, Letterman Army Medical Center, San Francisco, California, from 10 September 1986 to on or about 23 September 1986.  He was sentenced to reduction to private/pay grade E1, forfeiture of $250.00, and 30 days extra duty.

13.  On 2 December 1986, the applicant's company commander initiated separation action against him for commission of a serious offense under the provisions of chapter 14-12(c) of Army Regulation 635-200 (Personnel Separations).  The specific reason for elimination consideration was the applicant had a civil conviction for DUI and two incidents of being AWOL. 

14.  On 2 December 1986, records show the applicant acknowledged his company commander's proposed separation action for commission of a serious 
offense, civil conviction for DUI, and AWOL.  He consulted with legal counsel. 

The applicant indicated that he understood that if he was separated that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  The applicant did not submit a personal statement to the separation authority. 

15.  On 9 December 1986, the separation authority approved the company commander's request for discharge and directed that the applicant receive a General Discharge Certificate.  On 20 December 1985, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued when discharged confirms he was discharged and his characterization of service was under honorable conditions.  This form further confirms that he completed a total of 1 year, 10 months and 
18 days of creditable active military service and that he lost 13 days during this enlistment period.

16.  Army Regulation 635-200 (Personnel Separations), in effect at the time of discharge, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations), 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.

18.  Army Regulation 635-200 (Personnel Separations), 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 that his discharge should be upgraded to honorable as based on his diagnosis by an Army psychologist of acute mixed personality disorder.  He states, in effect, that he was ill when he was discharged.  The applicant was in fact discharged due to a pattern of misconduct and for DUI.  

2.  Medical and psychological examinations did determine that the applicant had developmental personality characteristics that contributed to his lack of adjustment to military life.  The medical opinion of the Chief, Mental Health Clinic at Fort Ord was that these personality characteristics did not warrant disposition through military medical channels, and he recommended administrative separation from active duty for unsatisfactory performance based on the applicant's expressed lack of motivation, and his social and emotional characteristics being incompatible with military service. 

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant’s record of service shows he had 13 days of lost time.  The applicant received two NJPs for AWOL and was arrested for DUI by civilian authorities.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Therefore, the applicant is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RD ___  __CD ___  __EM ___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




_____Richard Dunbar________
          CHAIRPERSON




INDEX

CASE ID
AR20070006262
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6000
2.

3.

4.

5.

6.