IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080017817 


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 be upgraded to honorable.

2.  The applicant states, in effect, that he was mentally ill and suffering from bipolar disorder at the time in question.  He contends that bipolar disorder was not known at the time, that he is still suffering from mental illness incurred in Vietnam, and that he is not trying to upgrade his discharge for monetary gain but to help him mentally.  He also points out that he had a nervous breakdown in Vietnam and did not know he was mentally ill, that he was very sick when he returned home, and that he should have been hospitalized.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) and a Department of Veterans Affairs (DVA) Rating 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.  The applicant enlisted in the Regular Army on 5 May 1965 for a period of 
3 years.  He successfully completed basic combat training, advanced individual training, and airborne training.  He was awarded military occupational specialty (MOS) 64A (light vehicle driver) and later MOS 31M (radio operator). 

3.  On 22 November 1966, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 18 November 1966 to 
22 November 1966.  His punishment consisted of a reduction to E-2.

4.  On 22 May 1967, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 12 April 1967 to 6 May 1967.  He was sentenced to be confined at hard labor for 6 months and to forfeit $50.00 pay per months for 6 months.  On 22 May 1967, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 4 months and 15 days, hard labor without confinement for 45 days, restriction for 45 days, and forfeiture of $50.00 pay per month for 6 months.  The confinement at hard labor for 4 months and 15 days was suspended for
6 months.

5.  On 3 July 1967, in accordance with his pleas, the applicant was convicted by a special court-martial of being AWOL from 7 June 1967 to 26 June 1967 and breaking restriction (two specifications).  He was sentenced to be confined at hard labor for 6 months and to forfeit $86.00 pay per months for 6 months.  On 
3 July 1967, the convening authority approved the sentence.

6.  On 18 July 1967, the applicant underwent a psychiatric examination.  The psychiatrist noted, "Continued irresponsible and unacceptable behavior with poor performance in unit."  He was, in effect, diagnosed with a character and behavior disorder.  The psychiatrist found him to be mentally responsible psychiatrically cleared for any action deemed appropriate by his command.

7.  On 19 July 1967, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unsuitability. 



8.  The applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a 
statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

9.  On 18 July 1967, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He based his recommendation for separation on the applicant's chronic absences from his place of duty and failure to respond to counseling efforts.  
   
10.  On 2 August 1967, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    
11.  Accordingly, the applicant was discharged on 10 August 1967 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He had served a total of 1 year, 10 months, and 14 days of creditable active service with 76 days of lost time due to AWOL and confinement.     

12.  In support of his claim, the applicant provided a DVA Rating Decision, dated 7 July 2008, which states, in pertinent part, that he was granted service-connection for bipolar disorder (30 percent).  This decision also states, in pertinent part, that “A review of your claims folder reveals you were hospitalized while in service in 1966, for a mental disorder.”  However, there are no service medical records available.    

13.  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.

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude, character and behavior disorders, apathy, alcoholism, and enuresis.  A general or honorable discharge was considered appropriate.  

15.  Army Regulation 635-200 (Personnel Separations -  Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that he was mentally ill when he was discharged.  Medical evidence of record shows that he underwent a psychiatric examination in July 1967 and was found to be mentally responsible and psychiatrically cleared for any action deemed appropriate by his command.

2.  Since the applicant’s record of service included one nonjudicial punishment, two special courts-martial convictions, and 76 days of lost time, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the 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 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)                                         AR20080017817



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ABCMR Record of Proceedings (cont)                                         AR20080017817



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