IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090003102 


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; physical disability separation; and/or assistance on having a 24-month eligibility requirement to receive medical treatment from a veteran’s hospital waived.

2.  The applicant states since May 2002 he has been under doctor’s care for a medical problem that is presumed to have started approximately 2 to 3 years ago, according to his doctor and his psychiatric nurse.  He states that he is now realizing that his decision to go absent without leave (AWOL) and his discharge may have been during his medical crisis as he spent 18 months in the United States Army.

3.  The applicant provides in support of his application a self-authored, undated letter that appears to be addressed to a Representative in Congress; a Disabled American Veterans National Service Office Contact Brief dated 11 October 2008; a letter from a psychiatrist referencing the applicant dated 21 October 2002; a self-authored letter dated 21 October 2002 referencing his mental illness; an unaddressed letter from a Board Certified Psychiatrist providing an update of his clinical status dated 29 September 2006; a self-authored letter that appears to be addressed to a Representative in Congress dated 7 July 2006, requesting intervention in having his military records corrected; a letter addressed to him from the Portsmouth Department Veterans Chapter 41 dated 21 October 2008, 
providing information regarding his Shelter Plus Care Program participation; a letter addressed to him from his father dated 24 October 2008, requesting that his discharge be upgraded; an undated letter from his sister recommending that his discharge be upgraded; and a letter from a doctor at the Portsmouth Mental Health Outpatient Services dated 19 December 2008, recommending that his case be reviewed for a determination of upgrading his discharge.

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 is requesting assistance on having a 24-month eligibility requirement to receive medical treatment from a veteran’s hospital waived.  The ABCMR has no jurisdiction over veteran’s hospitals as these facilities operate in accordance with their own policies and regulations.  Therefore, there will be no further discussion regarding this matter in this ABCMR Record of Proceedings.

3.  On 22 July 1997, the applicant enlisted in the Regular Army in Richmond, Virginia, for 3 years, in the pay grade of E-1.  He successfully completed his training as a unit supply specialist.

4.  The applicant was promoted to the pay grade of E-2 on 22 January 1998 and he was promoted to the pay grade of E-3 on 22 July 1998.

5.  The applicant went AWOL on 13 August 1998 and he remained absent in desertion until he returned to military control on or about 8 October 1998.  

6.  On 14 October 1998, the applicant was notified that charges were pending against him for AWOL.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  At the time that he submitted his request for discharge, he indicated that he had been advised of the implications that are attached to a discharge under other than honorable conditions and that he was guilty of the charge against him or of a less included offense which also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  In his request he stated that under no circumstanced did he desire further rehabilitation as he had no desire to perform further military service.

7.  Along with his request for discharge, he submitted a statement in his own behalf in which he stated that he went AWOL because of family problems such as his father’s addiction to cocaine.  He stated that when he got home he went to visit his father and his sister and he found out that his father’s addiction was so bad that he had the drug dealers making and selling drugs out of his house.  He stated that his sister was “around” and that he did not believe that it was a proper environment for his sister at 15 years of age.  He stated that he decided to turn himself in to military authorities when his father decided to get help for his addiction.  He states that his fiancé was also having physical problems while he was at home and that he had to make a choice between his family and the military; therefore, he chose his family.

8.  The appropriate authority approved the request for discharge on 25 May 1999 and he directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 17 September 1999, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had approximately 1 month and 26 days of lost time due to AWOL.

9.  A review of the available records does not show that the applicant was ever diagnosed with a mental condition while he was in the Army that would have required him to be processed for discharge through medical channels.

10.  On 17 December 2004, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 27 July 2005, the ADRB denied his petition to upgrade his discharge.

11.  The letters that the applicant now submits in support of his application are self-authored letters, letters from family members and letters from his psychiatrists requesting that his discharge be upgraded and attesting to the fact that he is currently being treated for psychotic symptoms and schizophrenia which they contend may have began while he was in the Army.

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.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  

14.  Paragraph 3-7 also 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.

15.  Title 10, U. S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded and that he should have been discharged by reason of physical disability.

2.  His contentions have been noted.  The letters that he has submitted in support of his application have also been considered.  However, there is no 


evidence in the available record that shows that the applicant was physically unfit or suffering from any disability while he was in the Army that would have required him to be processed for discharge through medical channels.

3.  The available record show that he went AWOL when he was in the Army and that upon his return he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  At the time that he submitted his request, he submitted a statement indicating that he went AWOL because of his father’s addiction to cocaine and problems with his fiancé.  

4.  There is no evidence in the available record that suggests that the applicant was experiencing psychotic symptoms or schizophrenia while he was in the Army.  His record shows that he had no desire to remain in the Army and as such, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  At the time that he submitted his request he indicated that he had been advised of the implications that were attached to a discharge under other than honorable conditions and that under no circumstanced did he desire further rehabilitation as he had no desire to perform further military service.

5.  The applicant records show that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He has provided no information sufficiently mitigating to warrant upgrading his discharge or changing his narrative reason for separation.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _ ZZZ  _______   ___
               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)                                         AR20090003102



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ABCMR Record of Proceedings (cont)                                         AR20090003102



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