IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090001208 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

2.  The applicant states, in effect, that subsequent to his discharge, he was diagnosed with a bi-polar disorder and he strongly feels that this was the reason for the behavior that led to his discharge.  He claims that had he received proper treatment at the time, his circumstances in the Army would have been different.  

3.  The applicant provides a letter from the Central Counties Mental Health and Mental Retardation (MHMR) Authority, Killeen, Texas, 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 record shows that after serving in the Army National Guard between 31 October 1984 and 29 October 1986, he enlisted in the Regular Army (RA) and entered active duty on 30 October 1986.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he was trained in, awarded, and served in military occupational specialty (MOS) 76X (Subsistence Supply Specialist).  It also shows that he was promoted to private first class (PFC)/E-3 on 1 April 1988, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record shows the applicant was absent without leave (AWOL) for 12 days between 25 May and 6 June 1988.  On 9 June 1988, he again departed AWOL from his unit at Fort Hood, Texas and he was subsequently dropped from the rolls of the organization on the same day.  He remained absent for 130 days until returning to military control on 10 October 1988.

5.  The applicant's record is void of any medical treatment records that indicate he was suffering from a disabling physical or mental condition while serving on active duty.  

6.  On 11 October 1988, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 25 May through on or about 7 June 1988, and from on or about 
9 June through on or about 10 October 1988.  

7.  On 14 October 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, and of the possible effects of a UOTHC discharge.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  In his discharge request, the applicant indicated that he understood that by submitting the request for discharge, he was acknowledging his guilt 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.  

8.  The applicant further indicated in his discharge request that he understood that if his request for discharge were approved, he could receive an UOTHC discharge which could result in him being deprived of many or all Army benefits, 

that he would be administratively reduced to the lowest enlisted grade, and that he could be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs].  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge.  The applicant elected not to submit a statement in his own behalf.

9.  On 8 November 1988, the separation authority approved the applicant's request for discharge and directed he receive an UOTHC discharge.  On 
23 November 1988, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge shows he completed a total of
1 year, 8 months, and 11 days of creditable active service of his RA enlistment, and that he accrued 142 days of time lost due to AWOL.

10.  The applicant provides a letter from a clerk at the Central Counties MHMR Authority, dated 17 July 2008, which confirms the applicant received their services on various dates between June 1999 and May 2008, and that he was diagnosed with bi-polar, severe, with psychotic features; and alcohol dependence.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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 discharge (GD) under honorable conditions, 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 he suffers from a bi-polar disorder that impaired his ability to serve, and that this condition was the cause of the behavior that led to his discharge was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.  
2.  The evidence of record is void of any medical treatment records that show the applicant was suffering from a disabling physical or mental condition at the time of his discharge processing.  Absent evidence to the contrary, it is presumed the Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge.  The fact he was subsequently diagnosed with a bi-polar disorder in 1999, more than 10 years after his discharge, does not call into question the application of the existing fitness standards.  It is also not sufficiently compelling to conclude his misconduct was the result of his suffering from this condition.

3.  The evidence of record confirms that 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 the rights of the applicant were fully protected throughout the separation process.

4.  The record also shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement that would have supported the issue of a GD or HD by the separation authority at the time of his discharge, or that would support an upgrade now. 

5.  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.

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
      
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)                                         AR20090001208



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ABCMR Record of Proceedings (cont)                                         AR20090001208



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