IN THE CASE OF:	

		BOARD DATE:	  01 June 2010

		DOCKET NUMBER:  AR20090021011 


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 his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was young and immature at the time of his military service.  He contends that he has bipolar disorder which may have been present during his tenure.  He requests that his discharge be reviewed for upgrade based on his military personnel file.

3.  The applicant provides a certified copy of a Superior Court of Arizona order  changing his name. 

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 Delayed Entry Program (DEP) in the United States Army Reserve (USAR) on 10 June 1985 for a period of 8 years.  He later requested to be discharged from the DEP and enlisted in the Regular component of the United States Army on 13 August 1985 for a period of 4 years. He completed basic combat and advanced individual training and was awarded military occupational specialty 63Y (Track Vehicle Mechanic).

3.  The applicant was given a separation physical and a mental status evaluation on 4 September 1987.  Item 77 (Examinee) of the Standard Form 88 (Report of Medical Examination) found the applicant qualified for discharge.  The results of the mental examination were recorded on a DA Form 3822-R (Report of Mental Status Evaluation).  The medical officer determined that the applicant was mentally responsible and able to distinguish right from wrong and to adhere to the right.  He also deemed that the applicant had the mental capacity to understand and participate in board proceedings.  The medical officer also opined that there was no evidence of mental disease or defect which warranted disposition through medical channels. 
 
4.  On 4 November 1987, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Personnel Separations), for repeatedly failing to show respect for the noncommissioned officers (NCOs) appointed over him and their orders.  The applicant subsequently acknowledged receipt of the separation memorandum.  He was advised 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 and for his case to be considered by a board of officers.  He also waived his right for appointment of military and civilian counsel.  

5.  The applicant elected to submit a statement on his behalf.  In his statement he contends, in effect, that his separation from the Army is warranted and would be beneficial to the Army and to him.  However, he felt he should be given an honorable discharge due to his many accomplishments in the unit.  He goes on to define his contributions, his character, and his personal history.  In closing he states that he is not a bad person or citizen to warrant a punishment that would affect his life permanently.  He made a mistake that has been documented and he simply asks that the approving authority favorably consider his request. 

6.  In December 1987, the separation authority approved the command's request for discharge of the applicant under the provisions of chapter 14-12(b), Army Regulation 635-200, for patterns of misconduct.  Accordingly, the applicant was discharged on 15 December 1987 and was not transferred to the Individual Ready Reserve (IRR) per the approval authority.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with an under honorable conditions (general) character of service.  This form further confirms that he completed a total of 2 years, 4 months, and      3 days of creditable active military service.  He completed a total of 1 year,        11 months, and 5 days of foreign service and did not have any lost time.    

7.  The applicant applied to the Army Discharge Review Board (ADRB) in August 1988.  On 7 November 1988, the ADRB reviewed the applicant’s petition for an upgrade and found that the applicant was properly and equitably discharged.  Accordingly, the ADRB denied the requested relief.    

8.  The applicant's record is void of any punishments under the Uniform Code of Military Justice (UCMJ); however, contained within the ADRB proceeding are two recorded offenses dated 11 June 1986 and 20 August 1987, respectively, for using disrespectful language toward a superior.  

9.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  

10.  AR 635-200, paragraph 3-7, 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.  

11.  AR 635-200, paragraph 3-7, 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 separation specifically allows such characterization.

12.  AR 635-200, Chapter 1, section VI, paragraph 1-32, states, in pertinent part that medical examinations are require for Soldiers being processed for separation under chapters 5, 8, 9, 11, 12, 13, 14, 15, and 18.  Medical examination incident to separation under other provisions of the regulation is not required but will be administered if requested in writing by the Soldier.  Additionally, mental status evaluations are required for Soldiers being processed for separation under chapters 13, 14, or 15.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his general under honorable conditions discharge to honorable was carefully considered and found not to be supported by the evidence.

2.  The evidence shows that the applicant was given notice that action was being initiated to discharge him from the Army under the provisions of AR 635-200, Chapter 14, for misconduct, on 4 November 1987 The applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14-12(b) for misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Based on his record of indiscipline and misconduct, which includes two offenses of disrespectful language toward his superiors, and a failure to repair, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his discharge.

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)                                         AR20090021011





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021011



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1