IN THE CASE OF:	  

		BOARD DATE:	  24 February 2009

		DOCKET NUMBER:  AR20080015906 


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, reconsideration of his earlier petition requesting that his under other than honorable conditions (UOTHC) discharge be upgraded. 

2.  The applicant states, in effect, that he was suffering from a bi-polar disorder that impaired his ability to serve, for which he should have been helped.  

3.  The applicant provides a self-authored statement, separation document
(DD Form 214), certificates of appreciation and training, and a social security administration disability decision 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC85-06189, on 
7 May 1986.  

3.  During its original review of the applicant's case, the Board determined the applicant's discharge was proper, equitable and commensurate with his overall record of service.  It further concluded that the applicant simply made a choice between administrative discharge and trial by court-martial and although he felt he may have made the wrong choice, it would not be appropriate to allow him to change his mind.  

4.  The applicant provides a self-authored statement as new argument.  In the statement he claims that he suffered from a bi-polar disorder and the Army should have helped him with this condition.  He further states that he was wrongly jailed for robbery and although the charge was a later dropped, he had already been dropped from the rolls (DFR).  He also provides certificates showing he has completed self-help courses and that he was granted disability compensation by the social security administration beginning on 23 January 2003, based on a psychological condition.  

5.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 22 January 1979, and that he was trained in and awarded military occupational specialty (MOS) 17B (Radar Crewmember).  His Personnel Qualification Record (DA Form 2-1) shows he was never advanced beyond the rank of private/E-1 (PV1), and that he accrued 333 days of time lost during five separate periods of being absent without leave (AWOL).  

6.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate dates for the offenses indicated:  14 May 1979, for being AWOL from on or about 
1 February through on or about 13 March 1979 and from on or about 18 March through on or about 1 May 1979; and 15 June 1979, for being AWOL from on or about 11 June through on or about 13 June 1979 and for failing to go to his appointed place of duty at the time prescribed on 13 June 1979.  

7.  On 2 March 1981, in conjunction with his discharge processing, the applicant underwent a mental status evaluation.  The examiner determined the applicant had the mental capacity to understand and participate in discharge proceedings, that he was mentally responsible and that he met regulatory medical retention standards. 

8.  The applicant's Official Military Personnel File (OMPF) is void of any medical records or treatment records that indicate he was suffering from or being treated for any mentally or physically disqualifying conditions at the time of his separation processing.  

9.  On 3 March 1981, a Charge Sheet (DD Form 459) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 22 June through on or about 18 November 1980 and from on or about 24 November 1980 through on or about 26 February 1981.  

10.  On 4 March 1981, the applicant consulted with legal counsel and was advised of the basis of for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ; of the possible effects of an UOTHC discharge; and of the procedures and rights available to him.  Subsequent to receiving this counseling, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, 
Army Regulation 635-200.  

11.  In his discharge request, the applicant acknowledged his guilt of an offense that authorized the imposition of a punitive discharge.  He further acknowledged his understanding that he could receive an UOTHC discharge and that if he did, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA (Department of Veterans Affairs) and that he could be deprived as his rights as a veteran under both Federal and State law.  The applicant elected not to request a physical examination.

12.  On 9 April 1981, the separation authority approved the applicant's request for discharge and directed the applicant receive an UOTHC discharge.  On 
1 May 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 4 months, and 15 days of creditable active military service and that he accrued 333 days of time lost due to AWOL.  It also shows he earned no awards or decorations during his active duty tenure, and that he held the rank of PV1 on the date of his discharge.  

13.  On 17 October 1983, the Army Discharge Review Board (ADRB) conducted a personal appearance hearing, at which the applicant was present and testified.  After hearing the applicant's testimony and considering his entire record of military service, the ADRB determined the applicant's discharge was proper and equitable and it voted not to upgrade or change the applicant's discharge. 


14.  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.  An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was suffering from a bi-polar disorder at the time of his discharge was carefully considered.  However, there is insufficient evidence to support his claim. 

2.  Although the applicant's post service conduct, as evidenced by the certificates he provides is noteworthy and his current medical condition as evidenced by the disability for which he is receiving social security compensation is unfortunate, these factors are not sufficiently mitigating to support an upgrade of his discharge at this late date. 

3.  The applicant's record contains a mental status evaluation completed in conjunction with his separation processing that confirms he had the mental capacity to understand and participate in discharge proceedings, that he was mentally responsible and that he met regulatory medical retention standards.  Further, his record is void of any medical treatment records that indicate he was suffering from a mentally or physically disqualifying condition at the time of his discharge.  As a result, there is no evidence that he was suffering from a disabling bi-polar disorder that would have precluded his UOTHC discharge for the good of the service at the time. 

4.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

5.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade now.  

6.  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 and/or that would support amendment of the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AC85-06189, dated 7 May 1986.  




      _______x _   _______   ___
               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)                                         AR20080015906



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ABCMR Record of Proceedings (cont)                                         AR20080015906


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