IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090007047 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, that he did mess up repeatedly but he served
2 years and 4 months.  He states that he suffered from an undiagnosed mental illness before and during his term of military service.  He states he was diagnosed with mental illness and he has been under treatment for the last 10 years.  He also states that he self-medicated in the past to treat his symptoms, but since he has been treated with prescription medication that he obtains from his psychiatrist he has not self-medicated for the past few years.

3.  The applicant provides a copy of his notification from the Social Security Administration, dated 9 December 2008, that shows he was advised of an increase in the monthly amount of his social security benefit 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 military personnel records show he enlisted in the Regular Army on 7 August 1979 for a period of 3 years.  On 20 April 1979, during his enlistment processing, he was referred for a neuro-psychiatric consultation.  The examiner reported the applicant had a history of neuro-psychiatric treatment 
3 years prior to his application for enlistment.  The examiner noted the applicant was having difficulty getting along with his mother and he went to see a psychiatrist periodically for about 1 year.  The examiner noted the applicant was not treated with medication and there was no neuro-psychiatric treatment.  The examiner determined the treatment received by the applicant was not considered disqualifying for enlistment.  There was no specific diagnosis given in the consultation.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 18 December 1979 for wrongful possession of marijuana, on 17 October 1980 for wrongful possession and sale of marijuana in the hashish form, and on 27 August 1981 for leaving the scene of an accident.

4.  On 29 October 1981, the applicant was evaluated by a lieutenant colonel of the Medical Corps, a psychiatrist.  The examiner found no signs of anxiety, depression, or thought disorder.  The examiner stated that apart from the applicant's continued drug abuse there was no severe personality deficits or anti-social behaviors noted.  The examiner stated the applicant wanted to get out of the Army and his present status of using street drugs and doing menial tasks made further rehabilitation efforts by his command difficult.  The examiner found the applicant unsuitable for further military service because of a lack of appropriate interest, defective attitudes, and failure to expend effort constructively.  The examiner recommended the applicant be administratively discharged for apathy.

5.  On 31 October 1981, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct due to his apathetic attitude, lack of discipline, possession of drugs, and frequent run-ins with authorities.  On 
31 October 1981, the applicant acknowledged receipt of this notification and indicated he had been previously counseled regarding the type of discharge he may receive and of the possible effects on him.

6.  The commander advised the applicant of his right to have his case considered by a board officers, to appear in person before a board officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.

7.  On 2 November 1981, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  

8.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  The applicant also acknowledged that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

9.  On 2 November 1981, the applicant's commander recommended that he be discharged due to a pattern of misconduct, frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  The commander also recommended waiver of a rehabilitative transfer.

10.  On 9 December 1981, the appropriate authority approved the recommendation for discharge due to a pattern of misconduct, waived the requirement for rehabilitative transfer, and directed the applicant's service be characterized as under other than honorable conditions.

11.  On 16 December 1981, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities with his service characterized as under other than honorable conditions.  He had completed
2 years, 4 months, and 10 days active service. 

12.  The applicant's service medical records were reviewed.  There was no record of a diagnosis or treatment for mental illness during the applicant's period of active service.  

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

14.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Included in the categories for discharge was frequent involvement in incidents of a discreditable nature with civil or military authorities.  Action was to be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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 contends an undiagnosed mental illness was present before he enlisted in the Army.  The neuro-psychiatric consultation he received prior to enlistment merely indicated he had seen a psychiatrist for about a year and was not treated with medication.  There no evidence to show the applicant was suffering from a mental illness at that time and he was considered eligible for enlistment.

2.  The applicant contends his mental illness has been diagnosed and he has been under treatment for the last 10 years.  However, this does not mitigate the circumstances under which he was discharged for almost 28 years ago.

3.  The applicant's notification of a change in his social security benefits was considered.  However, this notification does not provide sufficient evidence to upgrade a properly-issued discharge.
4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  A review of the applicant's record of service, which included nonjudicial punishment on three occasions, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement.  

6.  The ABCMR does not correct records solely due the passage of time.  

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable or to a general discharge under honorable conditions.

8.  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 that 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)                                         AR20090007047



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ABCMR Record of Proceedings (cont)                                         AR20090007047



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