IN THE CASE OF:	

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090015548 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states that he has been diagnosed with chronic bipolar mood disorders which stems from birth.  His intentions to serve his country were honorable at the time of his enlistment and he was unable to perform his duties due to his chronic bipolar disorder.

3.  In support of his application, the applicant provides copies of his DD Form 214 (Report of Separation from Active Duty), a letter and progress notes, and his resume.

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 records show he enlisted in the Regular Army in pay grade E-1 on 26 January 1976, for 3 years.  He completed training and was awarded military occupational specialty 41C (fire control instrument repairman).  He was promoted to pay grade E-4 on 1 September 1977.

3.  The applicant was reported absent without leave (AWOL) on 16 December 1977 and returned to military control on 19 December 1977.  He was again reported AWOL on 22 December 1977 and returned to military control on 13 January 1978.  On 16 January 1978, he was reported AWOL, confined by civilian authorities.  On 14 February 1978, his status was changed from civilian confinement to AWOL and he was dropped from the rolls of his organization the same day.  

4.  A DD Form 458 (Charge Sheet), dated 28 February 1978, was prepared showing the applicant was being charged with one specification of AWOL from 14 February 1978 to on or about an unknown date.

5.  The applicant was apprehended by civilian authorities and returned to military control on 1 October 1978.

6.  A Report of Medical Examination, dated 5 October 1978, shows the applicant was found to be in good health with no defects and diagnoses and qualified for separation.  A Report of Medical History, dated 5 October 1978, shows the applicant stated that he was in good health and he checked the block to indicate that he had no depression or excessive worry.

7.  The applicant was reduced to pay grade E-1 on 25 October 1978.

8.  There is no evidence the applicant was referred to a medical evaluation or a physical evaluation board for consideration of any medical condition during his period of active duty.

9.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged in pay grade E-1 on 6 November 1978, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.  His character of service was UOTHC and he was issued a UOTHC discharge certificate.  He was credited with 1 year, 11 months, and 28 days of net active service and 284 days lost time due to AWOL.



10.  The applicant provides copies of his progress notes and an undated letter from an individual whom the applicant identified as his psychiatrist.  The letter stated that the applicant was now stable from a psychiatric standpoint as of 15 July 2003.  The letter also stated that the applicant had advised that he had volunteered for active duty in 1976 and went AWOL for a 7 month period at which time he was consuming alcohol to excess.  The letter also stated, in effect, that the applicant had been treated in an inpatient status for depression resulting from his active medical condition, diagnosed with bipolar illness, and had been treated as an outpatient for the past 3 years.  The letter further stated, in effect, that the applicant’s medical condition interfered with his capacity to adhere to military standards, perform his military duties, and was not recognized at the time of his discharge.  The applicant’s discharge is deserving of being upgraded and his entitlement to benefits from the Department of Veterans Affairs restored.

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

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, a UOTHC discharge was normally considered appropriate.  The separation authority could direct an honorable or general discharge if such a discharge was merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a of the current version provides that an honorable discharge is a separation with honor.  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 inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b of the current version 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 can be issued only when the reason for the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable or general.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant's contentions have been considered; however, they do not support a change to his UOTHC discharge.  The evidence shows that he was reported AWOL on 16 and 22 December 1977, 16 January 1978, and 14 February 1978.  He was returned to military control on 1 October 1978.  

3.  The applicant has submitted no evidence to mitigate his offenses or to show that he was denied any assistance from his chain of command with any problems or medical condition he was having before or after his period of AWOL.  Additionally, the applicant has submitted no evidence to mitigate his reasons for going AWOL.  Even if he was enduring any problems, it was his responsibility to seek assistance.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review; however, it appears that his frequent incidents of AWOL led to his discharge and diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  The documentation provided by the applicant with his application was also carefully considered.  However, there is an absence of sufficient medical documentation to support his contentions.  There is also no evidence of any medical condition prior to his 1978 discharge from active duty.  Prior to his discharge, the applicant underwent a separation physical examination.  No defects or diagnoses were found and he determined qualified fit for separation.   The applicant's medical problems, after his period of service, and his beliefs, are not sufficiently mitigating to warrant a change to his discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.  

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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.




      _______ _   _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)                                         AR20090015548



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ABCMR Record of Proceedings (cont)                                         AR20090015548



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