IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080007812 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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. 

2.  The applicant essentially states that he was suffering from bipolar disorder at the time of his offenses which led to his discharge, and that prior to being properly treated, it caused him to have severe impairment in his judgment and thought process.  He also states, in effect, that his discharge was unfair, and that his service record was perfect up until one incident, and that he made a single, stupid error in judgment, got scared, and went absent without leave (AWOL).  He further states that he was a specialist four/E-4 and was going to reenlist.  He continued by essentially stating that his bipolar disorder has caused problems his whole life, but that he is now taking medications and is currently in college.  He also states that he has a recent need for Department of Veterans Affairs (DVA) health benefits.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 21 April 2008; and a Medical Release/Physician's Statement which appears to be dated 28 March 2008 in support of this 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 records show that he enlisted in the Regular Army on 29 April 1980.  He completed initial entry training and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  After completing airborne training, he was reassigned to Fort Bragg, North Carolina in September 1980.

3.  On 4 November 1980, the applicant went AWOL, and remained in this status until he returned to military control on 13 November 1980.  On 1 December 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for this incident.  His punishment consisted of 7 days of extra duty and forfeiture of $80.00, the latter of which was suspended for 60 days and ultimately remitted without further action.

4.  On 21 May 1982, the applicant was arrested by civil authorities in Lillington, North Carolina and charged with failing to appear in court.  He remained in civil confinement until he was released on 1 June 1982 after being fined $200.00.

5.  On 17 August 1982, the applicant went AWOL.  On 16 September 1982, he was dropped from the rolls of the Army and classified a deserter.  He remained in this status until he was apprehended by civil authorities in Columbus, Ohio on 
22 March 1983 and returned to military control.  He was reassigned to the United States Army Personnel Control Facility (USAPCF) at Fort Knox, Kentucky.   

6.  On 23 March 1983, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 17 August 1982, and remaining so absent until on or about 22 March 1983; an offense punishable under the UCMJ with a punitive discharge.

7.  Additionally, on 23 March 1983, the applicant acknowledged that he had been counseled on the requirements for completion of a medical examination prior to separation, and that if he was requesting a discharge for the good of the service 
under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), he was not required to undergo a medical examination, but he may request one.  However, the applicant elected not to undergo a medical examination, and fully understood that if he had requested a medical examination, a mental status evaluation was required for processing a Chapter 10 discharge and would have to be completed prior to his departure from the USAPCF at Fort Knox, Kentucky.  

8.  On or about 28 March 1983, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10, Army Regulation 635-200.  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

9.  In his request for discharge, the applicant acknowledged that he consulted with counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

10.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs], and that he 
may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  The applicant elected to not submit statements in his own behalf, and reiterated that he did not desire a separation physical.

11.  On 7 April 1983, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also essentially directed that the applicant be reduced in rank to private/E-1.  On 27 April 1983, the applicant was discharged accordingly.

12.  In a letter, dated 21 February 1989, the Army Discharge Review Board (ADRB) informed the applicant that his petition to upgrade his discharge was denied.

13.  The applicant essentially stated that he was suffering from bipolar disorder at the time of his offenses which led to his discharge, and that prior to being properly treated, it caused him to have severe impairment in his judgment and thought process.  He also stated, in effect, that his discharge was unfair, and that his service record was perfect up until one incident, and that he made a single, stupid error in judgment, got scared, and went AWOL.  He further stated that he was a specialist four/E-4 and was going to reenlist.  He continued by essentially stating that his bipolar disorder has caused problems his whole life, but that he is now taking medications and is currently in college.  He also stated that he has a recent need for DVA health benefits. 

14.  The applicant provided a Medical Release/Physician's Statement, which appears to be dated 28 March 2008.  This document appears to show that a certified nurse practitioner diagnosed the applicant with Bipolar I Disorder.

15.  Army Regulation 635-200 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge. 

2.  The applicant's contention that he suffered from bipolar disorder at the time of his offenses which led to his discharge under other than honorable conditions was considered, but not found to have any merit.  There is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he suffered from bipolar disorder at any time during his military service.  The fact that he provided a document which essentially shows that he was diagnosed by a certified nurse practitioner with Bipolar I Disorder in March 2008 was noted.  However, the fact that he was diagnosed with Bipolar I Disorder over 24 years after his discharge does not begin to approach the threshold of proving, by a preponderance of the evidence, that there was any mental issue behind the applicant's offenses which ultimately led him to request a discharge for the good of the service in lieu of a trial by court-martial.    

3.  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 this requirement.

4.  The fact that the applicant essentially wishes to have his discharge changed so that he may receive benefits from the DVA was noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.

5.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As 
he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ for going AWOL for 9 days in November 1980, was confined by civil authorities for 11 days in May 1982, and later went AWOL and was subsequently dropped from the rolls of the Army and classified as a deserter for which he was pending a trial by court-martial for.  Based on this 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, he is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007812



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ABCMR Record of Proceedings (cont)                                         AR20080007812



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