RECORD OF PROCEEDINGS


	IN THE CASE OF:	     


	BOARD DATE:	  3 January 2008
	DOCKET NUMBER:  AR20070010344 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 general, under honorable conditions.

2.  The applicant states, in effect, that he was recently diagnosed with having bipolar II disorder and now believes that he suffered from this ailment at the time he walked away from the United States Army.  He further states that he was a good Soldier.  He had high test scores; was named the Soldier of the Month; and was seriously talked to about the possibility of attending prep school and the United States Military Academy.  He is now taking lithium and amitryptyline for his problem and as his mind clears he is trying to right the wreckage of his past. He is not trying to put the blame on the United States Army.  He has discovered that bipolar II is a genetic illness.  He contends that his condition went undiagnosed by the United States Army.  He is hopeful of finding some sort of continued treatment once he is released from the Colorado Department of Corrections.  He also states that the reason for his current incarceration is due to his use of drugs for self-medication.  He wants this upgrade so that he can tell his children and grandchildren that he served his country with pride.

3.  The applicant provides a copy of his Psychological Assessment Report, dated 8 September 2005. 

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.  In October 1980, the applicant enlisted in the United States Army Reserve.  He completed his initial active duty for training and was awarded military occupational specialty (MOS) 61C1O (Watercraft Operator).

3.  On 13 October 1981, the applicant enlisted in the Regular Army for 4 years.  He retained his MOS of 61C1O. 

4.  On 5 March 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order.  The punishment included a forfeiture of $75.00 pay per month for    1 month and 10 days extra duty.

5.  On 1 February 1983, the applicant was promoted to the rank of specialist four, pay grade E4.

6.  On 7 September 1984, the applicant was barred to reenlistment.  The Bar to Reenlistment Certificate stated that the applicant had failed to demonstrate the ability to perform the duties of a Soldier; he was detrimental to the morale of the unit; and openly displayed antagonism and contempt towards authority.

7.  Records show that the applicant went AWOL (absent without leave) during the periods from 26 October to 17 November 1984; from 20 December 1984 to 
9 January 1985; from 14 January to 26 November 1985; and from 27 November 1985 to 6 January 1987.  He had a total of 766 days AWOL. 

8.  On 16 January 1987, 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. 

9.  On 13 February 1987, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 14 January 1985 to on or about 7 January 1987.

10.  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 to 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.   
11.  On 14 May 1987, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was placed on excess leave from 16 January to 12 August 1987.  On 12 August 1987, the applicant was discharged.  He had completed a total of 3 years, 8 months, and 
24 days of creditable active military service and had accrued a total of 766 days of lost time due to AWOL.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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, that 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.  An under other than honorable conditions discharge is normally considered appropriate.

14.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days includes a punitive discharge and confinement for 1 year.

15.  The Psychological Assessment Report, dated 8 September 2005, provided by the applicant, states that the applicant underwent a mental health evaluation on 6 September 2005.  It also stated that he was experiencing bipolar II disorder, attention deficit/hyperactivity disorder, and polysubstance dependence. The report also provides a statement from the applicant that he was diagnosed at about the age of eight years as being hyperactive and was receiving Ritalin.  The report does not indicate any service connection of his current ailments.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant's contention that he suffered from bipolar II disorder at the time of his misconduct is not sufficiently supported by the available evidence.   

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AMC__  __DAC __  __REB__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___    Ann M. Campbell___
          CHAIRPERSON




INDEX

CASE ID
AR20070010344
SUFFIX

RECON
 
DATE BOARDED
20080103 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19880603
DISCHARGE AUTHORITY
AR . 635-200. . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.