IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090019199 


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 be upgraded to honorable.

2.  The applicant states his misconduct was caused by self-medicating for his mental health problem.

3.  The applicant provides a copy of the mental health after-care plan provided upon his 8 September 2009 release from his local Department of Veteran Affairs Medical Center.

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 enlisted in the Regular Army on 24 February 1978.  He completed training as an infantryman and progressed normally.

3.  He was stationed in Germany, advanced to pay grade E-4 on 1 October 1979, and was awarded the Army Commendation Medal for meritorious service for the period 24-28 March 1980.

4.  On 10 December 1981, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for drunk driving.  On 29 September 1982, he received another for disrespect to a noncommissioned officer and willful disobedience of a lawful order from a commissioned officer to not drink alcohol during Exercise Reforger.

5.  A 15 March 1983 Standard Form 88 (Report of Medical Examination) identified the purpose for the examination as a chapter 10 separation.  The examining physician recorded a physical profile of "1-1-1-1-1-1" and found the applicant fully qualified for separation.  An attendant mental status evaluation found the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and adhere to the right.

6.  On 16 March 1983, the applicant was separated in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, with an under other than honorable conditions discharge for the good of the service in lieu of trial by court-martial.  The discharge package is not contained in the available records.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  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.  

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his misconduct was caused by self-medicating for his mental health problem.

2.  There is no evidence of any mental health problem during his military service and he provided no evidence that he had a mental health problem.  He underwent a separation physical examination which found him fit.  The associated mental status examination found his behavior normal.

3.  The discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's service appropriately characterized in the absence of evidence to the contrary.  There is nothing in the available records or in the evidence submitted by the applicant to overcome this presumption.

4.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20090019199



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ABCMR Record of Proceedings (cont)                                         AR20090019199



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