IN THE CASE OF:	

		BOARD DATE:	9 September 2009    

		DOCKET NUMBER:  AR20090005349 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he is bipolar and has been since he was a child.  He further states that he has no control over his bipolar condition and that it affects his life.

3.  The applicant provides his DD Form 214 (Report of Release or Discharge from Active Duty), a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service), and childhood medical test results and doctor consultation reports for the period March 1969 through January 1975, in support of this 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 he initially enlisted in the Regular Army (RA) and entered active duty on 31 May 1979 for a 3 year period.  He was trained in and awarded military occupational specialty (MOS) 36K (Tactical Wire Operation Specialist).  On 19 May 1981, the applicant reenlisted for an additional 6 years of service and received a selective reenlistment bonus for this service commitment.  The applicant's DA Form 2-1 shows, in Item 18 (Appointments and Reductions), that he was advanced to specialist four (SP4)/E4 on 17 February 1982 and that this was the highest rank/grade he attained while serving on active duty.

3.  In completing his application for enlistment in the U.S. Army the applicant responded "no" to the question "have you ever been a patient in any institution (whether or not formally committed) primarily devoted to the treatment of mental, emotional, psychological, or personality disorders?"

4.  At the time of the applicant's initial enlistment in the U.S. Army, a physical evaluation was conducted on 3 January 1979 which found the applicant qualified for enlistment.  Further, on a Standard Form (SF) 93 (Report of Medical History), completed by the applicant on the same date, he described his health as "good" and did not disclose any mental condition for which he was being treated at the time.

5.  The applicant's record documents no acts of valor or significant achievement.

6.  On 7 November 1980, the applicant accepted non-judicial punishment (NJP) for intentionally injuring himself by wrapping a one dollar bill around his arm and setting it on fire on 30 October 1980.  As punishment for this offense the applicant received a reduction to the rank/grade of private first class (PFC)/E-3 (suspended until 7 February 1981), and extra duty and restriction for 7 days.

7.  On 17 February 1982, the applicant accepted NJP for the wrongful use of provoking words to a noncommissioned officer on 7 February 1982.  As punishment for this offense the applicant received a reduction to PFC/E-3 (suspended for 120 days), forfeiture of $250.00, extra duty for 45 days, and restriction for 45 days (20 days suspended for 120 days).



8.  On 27 May 1982, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty on 15 May 1982.  As punishment for 
this offense the applicant received a forfeiture of $50.00, and extra duty and restriction for 7 days.  Further, on this date, the suspended portions of the applicant's 17 February 1982 NJP pertaining to reduction to PFC/E-3 and 20 days of restriction were ordered to be duly executed. 

9.  The applicant records contain an SF 88 (Report of Medical Examination), dated 22 June 1982, which found the applicant qualified for separation.  In the
SF 93 that was completed by the applicant at the same time, he described his health as "fair" based on asthma.  The applicant did not disclose any mental condition for which he was being treated at the time.

10.  On 23 August 1982, a summary court-martial (SCM) found the applicant guilty of 2 specifications of violating Article 86 for being absent without leave (AWOL) for the period 16 July 1982 through 28 July 1982 and for failing to go at the time prescribed to his appointed place of duty on 4 August 1982.  As a result, he was sentenced to be reduced to private (PV1)/E-1, forfeiture of $367.00 for one month, and to be confined to hard labor for 30 days.

11.  On 1 September 1982, the applicant was reassigned from Headquarters, 172nd Infantry Brigade, Fort Richardson, AK to the U.S. Army Retraining Brigade at Fort Riley, KS.  

12.  The applicant's record contains a training progress note, dated 6 October 1982, completed by an Army Medical Service Corps officer for the purpose of evaluating the applicant for discharge.  In summarizing the evaluation, the officer concluded that the applicant's insight and judgment were poor, that he was not motivated to perform well in the Army, and that his mental status was within normal limits.

13.  On 14 October 1982, the applicant accepted NJP for disrespect to a superior noncommissioned officer on 12 October 1982.  As punishment for this offense he  received a forfeiture of $50.00, and extra duty and restriction for 14 days.

14.  On 20 October 1982, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  The company commander also advised the applicant of his rights.

15.  On 20 October 1982, the company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him.  The company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on 
frequent incidents of a discreditable nature with civil or military authorities.  In his recommendation, the company commander cited the applicant's established pattern of misconduct as evidenced by his court-martial, NJP, and his continued misconduct while assigned to the U.S. Army Retraining Brigade.  The commander also indicates that an unfit medical condition is not the direct or substantial contributing cause of the misconduct.

16.  On 22 October 1982, the battalion commander concurred with the company commander’s recommendation and requested that the separation approval authority waive a rehabilitative transfer.

17.  On 25 October 1982, the applicant consulted with legal counsel.  The applicant acknowledged that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers and elected not to submit statements in his own behalf.  The applicant also indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general,  under honorable conditions discharge; that, as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all Veterans Administration (VA) benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant’s counsel, a commissioned officer's serving in the Judge Advocate General's Corps, also signed this document.

18.  On 27 October 1982, the brigade commander waived rehabilitative reassignment of the applicant, approved discharge of the applicant under the provisions of chapter 14 of Army Regulation 635-200, and directed that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

19.  The DD Form 214 issued to the applicant on the date of his separation on
3 November 1982 confirms that he was discharged with an under other than honorable conditions discharge, under the provisions of Army Regulation
635-200, chapter 14, and issued SPD Code "JKA."  At the time of his discharge the applicant had completed 1 year, 4 months, and 9 days of net active service this period and 1 year, 11 months, and 18 days of prior active service.
20.  The applicant's military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 21 January 1985, that shows he requested an upgrade of his 
under other than honorable conditions discharge to an honorable discharge.  On 14 February 1985, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant's discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB's decision accordingly.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

22.  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.

23.  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 applicant's contention that an uncontrolled bipolar condition was the cause of his behavior while in the U.S. Army was carefully considered.  However, 
the available medical evidence does not show the applicant ever sought assistance for this condition before or after his entrance on active duty, nor is there any evidence of record available to show that he was ever diagnosed or treated for this disorder.

2.  The medical documents provided by the applicant establish compelling evidence of emotional and mental issues during his childhood.  However, they do not provide a sufficient evidentiary basis to conclude they impacted the applicant as an adult and that they were the primary cause of the applicant's indiscipline during his service in the Army.

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline which includes four instances of NJP and one summary court-martial conviction, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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.  Therefore, in view of all 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.



      ___________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)                                         AR20090005349



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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