RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 MAY 2008
	DOCKET NUMBER:  AR20070018689 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 undesirable discharge be upgraded.

2.  The applicant states, in effect, he had mental and emotional problems prior to his induction.

3.  The applicant provides no additional evidence or official documentation in support of his application.

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 military personnel record shows he enlisted in the Regular Army on 5 December 1969 for a period of 3 years.  The applicant completed basic combat training.  However, he did not complete advanced individual training.

3.  The records show the applicant was absent without leave (AWOL) during the periods from 5 May 1970 to 21 May 1970 and from 27 May 1970 to 5 January 1971.

4.  On 3 February 1971, the applicant was examined by a major in the medical corps, a psychiatrist, at Fitzsimons General Hospital, Denver, Colorado.  The examiner provided a pertinent history of the applicant wherein he stated the applicant had manifested emotional instability at least since age 12 and that since then he had been abusing drugs, including opium, marijuana, LSD, speed, and glue sniffing.


5.  The examiner diagnosed the applicant with emotionally unstable personality, chronic, severe, with an acute exacerbation; manifested by the inability to complete tasks, difficulty with decision making, emotional mood swings, low frustration tolerance, impulsivity, and chronic drug abuse of almost every type.

6.  The examiner found the applicant had no disqualifying physical or mental defects sufficient to warrant disposition through medical channels.  The examiner further found the applicant was, both at the time of his AWOL offenses and at the present, mentally responsible to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings.  The examiner further found the applicant's condition was not amenable to hospitalization, treatment, disciplinary action, training, transfer to another station or organization, or reclassification to another type of duty.

7.  The examiner recommended the applicant be returned to his duty station, that no further attempt at rehabilitation be made, and that his case be placed before a board of officers with a view toward expeditious separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).

8.  The applicant's commander notified him that he was being recommended for separation from the service for unfitness under the provisions of Army Regulation 635-212.  The commander advised the applicant of his right to present his case before a board of officers; submit any statement in his behalf; and to be represented by military counsel appointed by the convening authority, military counsel of his own choice provided the requested counsel is reasonably available, or civilian counsel at his own expense.

9.  On 7 April 1971, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.   

10.  The applicant acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.  

11.  The applicant's commander recommended him for an undesirable discharge for reasons of unfitness under the provisions of paragraph 6a(4) of Army Regulation 635-212 for frequent incidents of a discreditable nature as evidenced by the applicant's 225 days of AWOL.  Discharge of the applicant was also recommended based on his emotionally unstable personality.  The commander further recommended a waiver of any reassignment or transfer as a rehabilitative attempt and that he be furnished an Undesirable Discharge Certificate.

12.  The intermediate commander recommended approval of the applicant's discharge and further recommended he be furnished an Undesirable Discharge Certificate.

13.  On 15 April 1971, the appropriate authority waived rehabilitative reassignment, directed the discharge of the applicant under the provisions of Army Regulation 635-212, and directed that he be furnished an Undesirable Discharge Certificate.

14.  On 16 April 1971, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents
of a discreditable nature with civil or military authorities.  He had completed
8 months and 11 days of active service that was characterized as under conditions other than honorable.  He had 225 days of time lost.  

15.  There is no indication that the applicant's case was considered by the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he had mental and emotional problems prior to his entry into active service.  


2.  A psychiatrist found that the applicant had no disqualifying physical or mental defects sufficient to warrant disposition through medical channels.  The psychiatrist further found the applicant was, both at the time of his AWOL offenses and at the present, mentally responsible to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings.  

3.  Evidence shows 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 ABCMR does not change military records based solely on the passage of time.

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

____X___  ___X____  ___X____  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.




      _________X_____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070018689



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508