IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080008689 


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 that his general discharge (GD), under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he did not receive his unemployment when he got out of the Army, even though he was entitled to receive it.  He receives monthly compensation from the Department of Veterans Affairs (DVA) for his service connected disabilities.  If he gets a change in his characterization of service, he would be entitled to additional state benefits. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a letter from the DVA Regional Office, Phoenix, Arizona.

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.  On 15 April 1980, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 27 August 1982, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed the training requirements and was awarded military occupational specialty 94B (Food Service Specialist).  He attained the grade of specialist four/E-4.

3.  On 26 January 1982, the applicant was diagnosed with a schizotypal personality disorder, chronic, severe, which existed prior to entry into service.  The diagnosis represented a character and behavior disorder.  The condition and the problems presented by his diagnosis were not, in the opinion of the examiner, amenable to hospitalization treatment, transfer, disciplinary action, training or reclassification within the military system.  It was unlikely that any effort to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The examiner, the division psychiatrist, recommended that the applicant be considered for administrative action as deemed appropriate by the command, with consideration for administrative separation from the service.  The applicant presented a long history of difficulties consistent with his diagnosis and his retention would not be consistent with good unit discipline or readiness.

4.  On 15 April 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order from a senior noncommissioned officer (NCO) and for disrespectful language to a senior NCO by saying "Counseling me is a waste of time."  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $150.00, and 10 days of correctional custody.  The reduction in grade and correctional custody were suspended.
 
5.  On 27 May 1982, the unit commander notified the applicant that he was initiating action to discharge the applicant from the service under the provisions of the Expeditious Discharge Program (EDP), with a GD.  The unit commander indicated that he initiated separation action based on the applicant's lack of motivation, substandard duty performance, history of NJP action, inability to adapt to a military environment, and the applicant's desire to leave active service.  
6.  On 4 June 1982, the applicant indicated that he understood that if he were issued a GD he could expect to encounter substantial prejudice in civilian life and acknowledged (with his signature) that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.  

7.  On 17 June 1982, the separation authority approved the applicant's separation and directed that he be given a GD.

8.  On 25 June 1982, the applicant was released from active duty under the provisions of the EDP with a GD.  He was credited with 1 year, 9 months, and
29 days of active military service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  On 19 August 1986, the applicant was discharged from the USAR Control Group upon completion of his statutory military obligation.  His service was also characterized as general, under honorable conditions.

9.  Army Regulation 635-200 (Enlisted Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph
5-31h(1) provided, in part, for the discharge of enlisted personnel whose performance of duty and potential for continued effective service fall below the standards required in the Army.  Individuals discharged under this regulation could be issued a general or honorable discharge. 

10.  Paragraph 5-13 of Army Regulation 635-200 provided that a Soldier could be separated for a personality disorder, not amounting to disability under Army Regulation 635-40, that interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply ingrained maladaptive pattern of behavior of long duration that interfered with the Soldiers’ ability to perform duty, and required that the diagnosis be so severe that the Soldier’s ability to function in the military environment was significantly impaired.  Army policy requires the award of a fully honorable discharge in such cases.

11.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  As early as 26 January 1982, the applicant's command was on notice that the applicant suffered from a schizotypal personality disorder, chronic, severe, which the examiner indicated existed prior to entry into service.  The condition and the problems presented by his diagnosis were not, in the opinion of the examiner, amenable to hospitalization treatment, transfer, disciplinary action, training or reclassification within the military system.  It was unlikely that any effort to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The applicant presented a long history of difficulties consistent with his diagnosis and his retention would not be consistent with good unit discipline or readiness.  The examiner, the division psychiatrist, recommended that the applicant be considered for administrative action as deemed appropriate by the command, with consideration for administrative separation from the service.  

2.  Rather than take the recommendation of the division psychiatrist and process him for administrative separation, the applicant's command retained him on active duty.  Three months later he received his first and only NJP, which was consistent with his diagnosis as earlier determined by the division psychiatrist.  Based on the one documented NJP, the unit then processed the applicant for administrative separation under the provisions of the EDP.

3.  While there may have been other instances of misconduct on the applicant's part, these incidents are not documented in his official record, and his record shows that he received the one NJP, of which most of the punishment was suspended and was never vacated.  He did not receive any courts-martial, there is no lost time in his record, and he was not reduced in grade.  

4.  Based on the available facts of this case, it appears that the applicant should have been discharged as early as January 1982 based on his diagnosis of a personality disorder and the clear findings of the psychiatrist that the applicant was not trainable and that his condition existed prior to his entry into service.   His unit also had clear notice that his diagnosis was not amenable to hospitalization treatment, transfer, disciplinary action, training or reclassification within the military system, and that it was unlikely that any effort to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  At that point the applicant had no record of misconduct and a basis existed for processing him for administrative separation already existed– his documented personality disorder.  

5.  Given the above, and as a matter of equity, the applicant's record should now be changed to show that he was honorably released from active duty on 25 June 1982 under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial Authority; and that he was honorably discharged from the USAR Control Group (Annual Training) on 26 August 1986.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that he was honorably released from active duty on 25 June 1982 under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority, with a corresponding Separation Program Designator (SPD) code of "LFF"; and 

	b.  showing that he was honorably discharged from the USAR Control Group (Annual Training) on 26 August 1986.


								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)                                         AR20080008689



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ABCMR Record of Proceedings (cont)                                         AR20080008689



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