IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090015478 


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 uncharacterized discharge be upgraded to honorable or general under honorable conditions.

2.  The applicant states that he wants to live the rest of his life in peace without feeling like a failure.  The applicant contends that he has not taken drugs since 1993, has not had a drink of alcohol since 1998, and has not smoked marijuana since 1999.  It took all of these years for him to get a combination of medicine that would give him some sort of control over his life.

3.  The applicant provides three letters totaling 32 pages of recollections of his days leading up to his enlistment, subsequent discharge, and life in halfway houses and mental hospitals.

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.  On 3 January 1991, the applicant enlisted in the Regular Army for 4 years.  He was assigned to Fort Jackson, South Carolina, for initial training.

3.  On 8 January 1991, the applicant's behavior was normal during a mental status evaluation.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal, and his memory was good.  His behavior was hostile.  There was no significant mental illness.  The applicant was mentally responsible.  He was diagnosed with a maladaptive pattern of behavior reflecting a long-standing, deeply ingrained personality disorder.  Further rehabilitative efforts, counseling, or punishment would not have a beneficial effect on the applicant.  The psychiatrist stated that the applicant was grossly immature, undisciplined, and willful.  He was completely unsuitable for military service.  He had an extensive history of multiple drug use and dependence which had required professional counseling and removal from his home.  This resulted in definite psychological and probably neurological damage.

4.  On 9 January 1991, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-13, for a personality disorder.  The commander further stated that the applicant was a self-destructive individual who was completely unsuitable for military service.  He represented a significant danger to himself and others.  If he were retained on active duty, he would react poorly to stress posing a danger in a combat situation.  The commander recommended that he be expeditiously discharged.

5.  On 10 January 1991, the applicant indicated that he had been afforded the opportunity to consult with counsel; however, there is no evidence showing that he had done so.  He did not desire a separation medical examination.

6.  On 10 January 1991, the appropriate authority waived a rehabilitative transfer and approved the recommendation.  He directed that the applicant be discharged with an uncharacterized character of service.  He was accordingly discharged on 11 January 1991.  He had completed 9 days of creditable active duty service.

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provides authorization for separation for the convenience of the government.  Paragraph 5-13, in pertinent part, provides for a discharge based on a personality disorder.  An honorable discharge was normally issued, unless an entry-level separation was required. Entry-level status is defined as the first 180 days of continuous active duty.  Service for Soldiers separated in an entry-level status will be uncharacterized.

9.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 that his uncharacterized discharge should be upgraded to honorable or general under honorable conditions so that he can live out the rest of his life in peace and not feel like a failure.

2.  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.

3.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

4.  The available evidence of record clearly shows the applicant was discharged after only 9 days of active duty service.  Accordingly, he was processed for separation under the regulatory provisions for entry-level status performance and conduct.  This required an uncharacterized separation.

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 the aforementioned requirement.

6.  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.



      __________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)                                         AR20090015478





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ABCMR Record of Proceedings (cont)                                         AR20090015478



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