IN THE CASE OF:	  

		BOARD DATE: 	         27 May 2009

		DOCKET NUMBER:  AR20090003675 


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 discharge under other than honorable conditions be upgraded to honorable or a general discharge.

2.  The applicant states that during his second enlistment he had a bipolar disorder and was not diagnosed nor treated.  He contends that his poor behavior could have been controlled with medication.  He also states that he has not held employment since his discharge, that he is currently receiving Social Security income, and that a discharge upgrade would allow him to participate in Department of Veterans Affairs (DVA) health care benefits.   

3.  The applicant provides a Certification of Military Service, a DD Form 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 215 (Correction to DD Form 214) 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 9 August 1977 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 64C (motor transport operator).  On 12 February 1980, he was honorably discharged for immediate reenlistment.  He reenlisted on 13 February 1980 for a period of 3 years. 

3.  On 24 October 1980, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 17 October 1980 to 
20 October 1980 and treat with contempt to a captain  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, extra duty, and restriction.  

4.  On 22 January 1981, nonjudicial punishment was imposed against the applicant for two specifications of larceny.  His punishment consisted of a reduction to E-2, a forfeiture of pay, and extra duty.  

5.  On 23 February 1981, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a reduction to E-1 and extra duty (suspended). 

6.  On 11 June 1981, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty at the time prescribed, two specifications of disobeying a lawful command, and disobeying a lawful order.  His punishment consisted of a forfeiture of pay and extra duty. 

7.  On 8 July 1981, a bar to reenlistment was imposed against the applicant.

8.  On 5 August 1981, the applicant underwent a mental status evaluation and was found to be mentally responsible.

9.  On 13 August 1981, the applicant signed a Medical Examination for Separation/Retirement Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  On an unknown date, his medical records were reviewed and it was noted "Records reviewed - no serious medical problems noted since entrance on active duty.  Patient interview reveals no significant medical problems to be noted."  
10.  On 17 August 1981, the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-33b(1), for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He based his recommendation for separation on the applicant's continuous willful acts in violation of the Uniform Code of Military Justice and civil laws.

11.  On 17 August 1981, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued and that he further understood that as the result of issuance of a discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

12.  On 22 September 1981, the separation authority approved the recommendation for discharge and directed that the applicant be furnished a discharge under other than honorable conditions. 

13.  The applicant was discharged under other than honorable conditions on 
28 September 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. He had served a total of 4 years and 28 days of creditable active service with 22 days of lost time due to AWOL.

14.  On 7 March 1996, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14, paragraph 14-33b(1), provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate.  

16.  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.  
17.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that during his second enlistment he had a bipolar disorder.  Medical evidence of record shows that he underwent a mental status evaluation on 5 August 1981 and was found to be mentally responsible.

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
 
3.  The applicant’s record of service included four nonjudicial punishments, a bar to reenlistment, and 22 days of lost time.  As a result, his record of service was not satisfactory and 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 or general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations 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.  
 
5.  The type of discharge directed and the reasons therefore 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.




      __________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)                                         AR20090003675





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ABCMR Record of Proceedings (cont)                                         AR20090003675



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