IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090020745 


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 change of his reason for separation from misconduct to unsuitability in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13.

2.  The applicant states he was given an improper discharge under Army Regulation 635-200, chapter 14, for misconduct.  He contends he was undiagnosed with a then-existing severe personality disorder.  He makes reference to his commander's DA Form 4856 (General Counseling Form) he was given which stated, "…then he became moody, despondent."

3.  The applicant provides a copy of a Social Security Administration (SSA) Notice of Decision - Fully Favorable letter, dated 23 September 2005.

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 record shows he initially enlisted in the U.s. Army Reserve (USAR) Delayed Entry Program (DEP) on 9 April 1980 for a period of 6 years.  He was discharged from the USAR DEP on 19 May 1980 and he enlisted in the Regular Army on 20 May 1980 for a period of 3 years. He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer).

3.  The applicant was given a separation physical and a mental status evaluation on 4 September 1981.  Item 77 (Examinee) of the Standard Form 88 (Report of Medical Examination) found the applicant qualified for separation.  On 
13 November 1981, the applicant was cleared for separation on a DA Form 3822-R (Report of Mental Status Evaluation).  The medical officer determined that the applicant's behavior was normal, he was fully alert, fully oriented, that his mood or affect was unremarkable, that his thinking was clear, his thought content normal, and his memory good.  He also deemed that the applicant had the mental capacity to understand and participate in board proceedings, that he was mentally responsible, and that he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

4.  The applicant wrote four letters to his superior officers which were entitled, "Matters of Consideration under Article 15 Proceedings," all dated 30 December 1981.  He stated that he had received punishment under Article 15 four times.  He admits that he has not been obeying most of the orders in his chain of command's eyes but in his eyes, he thinks he had made an effort.  He stated that he has problems which are very personal and he has stages of depression and a split personality that he cannot chase away.  He states that the problems in his head caused him not to feel so well, then he finds himself in trouble.  He asks the command for a transfer to a new unit so that he could get back on track and finish his 3 year obligation.  He pleads that he wants his family and those who see him in his current state to feel proud of him.

5.  On 6 January 1982, the immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200, paragraph 14-33 b(1), for frequent incidents of a discreditable nature with civil or military authorities.  The applicant's record contains over 50 handwritten statements from various leaders who encountered his behavioral patterns.

   a.  The commander stated that he did not think it was feasible or appropriate to recommend elimination for unsuitability because when the Soldier first was assigned to the company he had a good record for several months and demonstrated fully the capability of being a Soldier.  At some later point, he deliberately aligned himself with less-than-productive members of the company.  The commander ended his comment by stating that the Soldier is fully capable but refused to adapt to be the Soldier he could be.

   b.  He was punished three times under Article 15, Uniform Code of Military Justice (UCMJ), for failing to follow lawful orders, misappropriation [of private property], and escape from custody.  He had one offense of civil confinement during the period 5 - 7 November 1981.  He was also counseled on several occasions for alcohol abuse, failure to repair, misconduct, and disobeying a direct order.

   c.  The applicant subsequently acknowledged receipt of the separation memorandum.  He was advised by legal counsel of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  The applicant waived his right to personally appear before a board of officers, he elected not to submit any statement in his behalf, and waived his right for appointment of military counsel or civilian counsel at no expense to the government.

6.  In January 1982, the separation authority approved the command's request for discharge under the provisions of Army Regulation 635-200, 
chapter 14-33b(1), for patterns of misconduct.  Accordingly, the applicant was discharged on 29 January 1982.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with an under other than honorable conditions discharge.  Item 28 (Narrative Reason for Separation) shows the entry "Misconduct - frequent incidents of a discreditable nature with civil or military authorities."  The DD Form 214 further confirms that he completed a total of 1 year, 8 months, and 10 days of net active military service with no time lost, and he completed 1 month and 11 days of prior inactive service.  He was reduced to private (PV1)/E-1, effective 20 January 1982.

7.  The applicant applied to the Army Discharge Review Board (ADRB) in September 1985.  On 25 November 1985, the ADRB reviewed the applicant’s petition for an upgrade of his discharge and found that the applicant was properly and equitably discharged.  Accordingly, the ADRB denied the requested relief.


8.  A letter from the SSA in response to the applicant's application for Supplemental Security Income (SSI) found the applicant disabled on 7 November 2002 because of a personality disorder so severe that its impairment meets the requirements of Listing 12.08 (A)(3,4,5) and (B)(2,3), in the Listing of Impairments contained in the Disability Evaluation Under Social Security (Blue Book). 

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

10.  Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his personality disorder was undiagnosed at the time of his discharge was carefully considered but is not proven by the evidence provided.

2.  In the commander's recommendation for separation, he states that he did not think it was feasible or appropriate to recommend elimination for unsuitability because the applicant performed his duties in an acceptable manner for several months after his arrival in the unit.  Chapter 13 required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  The commander stated that the applicant was fully capable but refused to become a good Soldier.
3.  It is also noted that the SSA diagnosed the applicant with a severe personality disorder as of 7 November 2002.  However, this does not prove an error or injustice occurred on the part of the Army at the time of his discharge which occurred in 1982, some 20 years earlier.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  Absent of any medical evidence which would have been documented during his military career showing he had been diagnosed with a personality disorder at the time and that such a disorder was the reason for his separation, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20090020745



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ABCMR Record of Proceedings (cont)                                         AR20090020745



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