RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070009839 


	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:


Ms. Linda Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawly Sabree

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 other than honorable conditions be upgraded to a general discharge under honorable conditions. 

2.  The applicant states, in pertinent part, that medical evidence supports a discharge characterization upgrade. 

3.  The applicant provides two psychiatric medical statements dated 29 October 1975 and 24 May 2007 which state, in effect, that the applicant is being treated for schizoaffective bipolar disorder with psychosis, features of 
post-traumatic stress disorder and cannabis abuse.  

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 16 September 1971.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 91A (Medical Corpsman).  The highest rank he attained while serving on active duty was specialist five/pay grade E-5.

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

4.  There is no record of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), in the applicant's military personnel record. 

5.   On 19 January 1976, court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ, specifically for being absent without leave (AWOL) from on or about 18 April 1975 to on or about 12 January 1976.  Records show the applicant was absent 269 days under Title 10, United States Code, section 972.

6.  On 21 January 1976, the applicant was evaluated by a medical services corps military doctor.  Item 42 of the applicant's Standard Form 88 (Report of Medical Examination) shows that his psychiatric clinical evaluation was normal during his separation examination.  There are no remarks concerning the applicant's psychological state.

7.  On 21 January 1976, 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.

8.  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.

9.  On 29 January 1976, that applicant was evaluated by a behavioral science specialist under the supervision of a psychiatrist at the Fort Knox, Kentucky, Mental Hygiene Clinic.  The psychiatrist concurred with the behavioral science specialist citing there was no underlying, previously unrecognized or medically disqualifying emotional illness.  The psychiatrist further states that the applicant was mentally responsible, that he was able to distinguish right from wrong and he possessed the mental capacity to understand and participate in his own discharge process. 

10.  On 6 February 1976, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions characterization of service.  On 23 February 1976, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) 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 form further confirms that he completed a total of 3 years, 8 months and 14 days of creditable active military service.

11.  In support of his application, the applicant provides two separate civilian psychiatric narrative summaries.  The first, dated 29 October 1975, prior to his separation in lieu of trail by court-martial, states in pertinent part, that the applicant presented a clinical picture of pseudo neurotic schizophrenia with signs of severe depression.  The second, dated 24 May 2007, states in pertinent part, that the applicant is currently being treated for schizoaffective bipolar disorder with psychosis, with features of post-traumatic stress disorder and cannabis abuse.  The second psychiatrist states, it is his professional opinion that the applicant should have been honorably discharged under medical conditions so as to be eligible for Veterans benefits. 

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 16 October 1981, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable, and that the discharge was properly characterized as under other than honorable conditions.  

13.  Army Regulation 635-200 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.

14.  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.

15.  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 CONCLUSION:

1.  The applicant contends that his discharge should be upgraded based on medical evidence that was available when he was discharged and based on his current medical condition.

2.  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.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's personnel file and discharge proceedings were heard at an ADRB hearing on 16 October 1981.  The ADRB took into consideration the applicant's treating psychiatrist's medical evaluation, but did not believe that the applicant's capability was significantly restricted so as to continue serving or that his decision to go AWOL was rooted in underlying psychosis.  This appears to be a valid assessment of the evaluation.

4.  Based on his record of indiscipline and the 269 days of time lost due to his AWOL status, 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.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LS____  ___CD __  __QS ___  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.





_____ Linda Simmons________
          CHAIRPERSON




INDEX

CASE ID
AR20070009839
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071114
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.
144.0100
2.

3.

4.

5.

6.