IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017660 


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 discharge be upgraded to honorable.

2.  The applicant states that he was diagnosed with Bipolar Disorder in 1990 and believes he was suffering from bipolar disorder in 1986, but it was unknown at the time.  He thinks this contributed to him going into an absent without leave (AWOL) status.  He turned himself in when he realized he was wrong.  Up until 1986, he had a good record.  He has no childhood criminal record prior to his military record.   

3.  In support of his application, the applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter from the Social Security Administration, and a Brain Therapy Center article. 

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 Delayed Entry Program on 4 January 1985.  He enlisted in the Regular Army (RA) in pay grade E-1 on 6 February 1985, for 3 years.  He completed the training requirements and he was awarded military occupational specialty 64C, Motor Transport Operator.  He was advanced to pay grade E-2 on 6 August 1985.  This is the highest grade held during his period of service.

3.  On 14 January 1986, the applicant's commander initiated action barring the applicant from advancement to pay grade E-3.  

4.  He was reported AWOL on 27 March 1986 and dropped from the rolls of his unit on 25 April 1986.  He surrendered to military authorities on 17 July 1986 and was returned to military control.

5.  On 21 July 1986, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with one specification of being AWOL from 27 March to 17 July 1986.

6.  On 21 July 1986, after consulting with counsel, the applicant submitted a statement wherein he knowingly, willingly, and voluntarily declared that he was AWOL from 27 March to 17 July 1986.  He acknowledged he was making the admission for administrative purposes only so he could process out of the Army and in doing so he could be issued a discharge under other than honorable conditions.

7.  On 23 July 1986, after further consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10. In doing so, he acknowledged that he understood he might be discharged with a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  He also acknowledged that he understood he could be discharged under conditions other than honorable and be furnished an Under Other Than Honorable Conditions Discharge Certificate and, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 24 July 1986, the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, recommended approval of the applicant's request with an under other than honorable conditions.  The commander stated that based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect and a discharge at that time was in the best interest of all concerned.  The commander also stated that there did not appear to be any reasonable grounds to believe the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal.  

9.  On 24 July 1986, the Commander, U.S. Army Personnel Control Facility, Fort Knox, recommended approval of the applicant's request for discharge for the good of the service, with the issuance of an under other than honorable conditions discharge.

10.  On 31 July 1986, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be reduced to pay grade E-1 and issued an Under Other Than Honorable Conditions Discharge Certificate.

11.  The applicant’s medical records contain no information showing he was disqualified for further service due to a medical condition.  There was no medical data meriting medical discharge consideration or processing.

12.  The applicant was discharged in pay grade E-1 on 22 August 1986, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He was credited with 1 year, 2 months, and 27 days of net active service.  He was also credited with lost time from 27 March through 16 July 1986 due to being AWOL.

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

14.  The applicant submitted copies of a letter from the Social Security Administration which stated he received disability for mood disorders from January 1991 to September 2004 and the Brain Therapy Center article describes Bipolar Disorders and Manic Depression.  

15.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the 
standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  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 enlisted in the RA on 6 February 1985 for 3 years and advanced to pay grade E-2 on 6 August 1985.  In January 1986, his company commander initiated action barring his advancement to pay grade E-3.  He departed AWOL on 27 March 1986 and was dropped from the rolls on 25 April 1986.  Upon his return to military control on 17 July 1986, he admitted being AWOL and requested a discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The Special Processing Company commander stated that there appeared to be no reasonable grounds to believe the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal.  Based on the available evidence, there is no basis for the upgrade of his discharge to either a fully honorable or a general discharge.

3.  The applicant has submitted neither probative evidence nor a convincing argument to show he is now deserving of an upgrade of his discharge based on his 1990 medical diagnosis.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.
4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

5.  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)                                         AR20090017660



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ABCMR Record of Proceedings (cont)                                         AR20090017660



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