BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100001009 


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, in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was being seen by a psychiatrist and should have been discharged under the provisions of Army Regulation 615-360 (Enlisted Men – Discharge; Release from Active Duty), Section 8 (Inaptness or Undesirable Habits or Traits of Character) because he was mentally unfit for service.  Instead he was given a dishonorable discharge and this was a miscarriage of justice.  He thinks his discharge was changed just to expedite his discharge.  He is currently unemployed and in need of medical benefits.

3.  The applicant provides no additional documentation in support of his application.

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 record shows he enlisted in the Regular Army in pay grade E-1 on 23 August 1976, for 3 years.  He completed training and he was awarded military occupational specialty 52B (Power Generator Equipment Operations Mechanic).  He was advanced to pay grade E-2 on 6 April 1977, the highest grade he held.

3.  On 1 December 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for wrongfully possessing one ounce, more or less, of marijuana on 30 October 1976.  His punishment was a forfeiture of $50.00 pay for 1 month and 7 days extra duty.  He did not appeal the punishment.

4.  On 23 March 1977, a bar to reenlistment was initiated against the applicant based on his poor conduct and efficiency.  

5.  On 6 April 1977, the applicant accepted NJP for failing to obey a lawful order on 30 March 1977.  His punishment was a reduction to pay grade E-1 (suspended for 90 days), a forfeiture of $87.00 pay (suspended for 90 days), and 14 days extra duty.  He did not appeal the punishment.

6.  The bar to reenlistment was approved on 27 April 1977.

7.  On 14 June 1977, the applicant accepted NJP for failing to obey a lawful order on 9 June 1977.  His punishment was a forfeiture of $80.00 pay (suspended for 90 days) and 14 days extra duty.  He did not appeal the punishment.

8.  On 7 July 1977, the applicant was convicted by a summary court-martial of one specification of behaving disrespectfully towards his superior commissioned officer on 28 June 1977, one specification of damaging military property of the   U. S. on 28 June 1977, and two specifications of failing to obey a lawful order on 28 June and 4 July 1977.  He was sentenced to 25 days confinement at hard labor and a forfeiture of $172.00 pay for 1 month.  The sentence was approved and ordered duly executed on 8 July 1977.

9.  On 18 August 1977, the applicant accepted NJP for failing to go to his appointed place of duty on 15 August 1977.  His punishment was a forfeiture of $70.00 pay and 14 days extra duty.  He elected to appeal the punishment and his appeal was denied on 23 August 1977.

10.  On 26 September 1977, the applicant was again convicted by a summary court-martial of one specification of failing to go to his appointed place of duty on 1 September 1977.  He was sentenced to $249.00 per month for 1 month and confinement at hard labor for 30 days.  Only so much of the sentence as provided for 20 days confinement and $100.00 forfeiture for 1 month was approved and ordered duly executed on 26 September 1977.

11.  On 7 November 1977, the applicant accepted NJP for wrongfully engaging in a fight with another service member on 30 October 1977.  His punishment was a forfeiture of $50.00 pay for 1 month and 14 days restriction and extra duty.  He elected to appeal the punishment and his appeal was denied on 11 November 1977.

12.  A Statement of Social Work Evaluation, dated 14 November 1977, shows the applicant was evaluated by the unit social work officer and the Community Mental Health Activity psychiatrist.  The unit social work officer stated the applicant was exposed to a highly irrational home environment and faulty parental role models as a child and adolescent.  He joined the Army to escape his disturbed family, but continued to abuse drugs, primarily alcohol, in the service.  Consequently, he was diagnosed by a mental health consultation service physician as an alcoholic with an episodic, excessive drinking pattern and was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 7 March 1977.  He denied a drug problem, resisted rehabilitation efforts, and was declared a rehabilitation failure in September 1977.  The applicant continued to drink excessively despite rehabilitation efforts (individual and group counseling in addition to participation in ongoing retraining activities).  The majority of the applicant’s military problems were related to his polydrug abuse and alcoholic personality traits, including low stress tolerance, a negative self-image, and feelings of isolation, insecurity, and depression.  

13.  The unit social work officer also stated the Community Mental Health Activity psychiatric stated in his clinical findings on the applicant that there appeared to be no evidence of psychosis, neurosis, or other disorders which would require referral for psychiatric treatment.  It was believed the applicant would not adjust to the military setting, his potential for return to duty was minimal, and further rehabilitative efforts would be non-productive.  The unit social work officer recommended the applicant be considered for an honorable discharge from the military service due to rehabilitation failure.

14.  On 18 November 1977, the applicant’s unit commander initiated action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-5a, for misconduct because of frequent incidents of discreditable nature.   The unit commander stated the applicant’s record reflected his highest rank had been E-2, he had two courts-martial, and five punishments under Article 15 of the UCMJ.  It was his opinion that the applicant possessed the mental and physical ability necessary to be an effective Soldier, but his present record and his failure to react constructively to the rehabilitation program were indicative he should not be retained in the service.

15.  On 18 November 1977, the applicant’s battalion commander recommended approval of the applicant’s separation.

16.  On 23 November 1977, after consulting with counsel, the applicant acknowledged the proposed separation action.  He waived his right to counsel and to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge, under honorable conditions and the effects of such a discharge.  He further acknowledged the results of the issuance of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

17.  On 30 November 1977, the appropriate authority approved his discharge and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

18.  Accordingly, the applicant was discharged from active duty in pay grade E-1 on 2 December 1977, under the provisions of Army Regulation 635-200, paragraph 13-5a(1) and issued an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with 1 year, 1 month, and 20 days of net active service and 50 days time lost due to confinement.

19.  On 30 July 1977, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

20.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unsuitability was warranted, an under other than honorable conditions was issued by the separation authority.

21.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  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 clearly inappropriate.

22.  Army Regulation 615-360, Section 8, in effect during World War II, referred to a category of discharge from the U.S. military for reason of being mentally unfit for service.  Discharge under Section 8 is no longer a military reality, as medical discharges for psychological/psychiatric reasons are now handled under the provisions of Army Regulation 635-40.

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 submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

2.  The applicant’s contentions have been noted.  However, there is no evidence he was diagnosed with a mental illness that required separation processing under the provisions of Army Regulation 635-40.  The evidence of record shows he was twice convicted by court-martial, punished five times under Article 15, and the highest grade he attained was E-2.  His unit commander stated he possessed the mental and physical ability necessary to be an effective Soldier, but his record at the time and his failure to react constructively to the rehabilitation program were indicative he should not be retained in the service.  A Social Work Evaluation showed he had been diagnosed by a mental health consultation service physician as an alcoholic with an episodic excessive drinking pattern.  He was also enrolled in the ADAPCP in March 1977 and declared a rehabilitation failure in September 1977.  

3.  A Community Mental Health Activity psychiatric, in his clinical findings, found no evidence of psychosis, neurosis, or other disorders which would require referral for psychiatric treatment.  It was believed the applicant would not adjust to the military setting, his potential for return to duty was minimal and further rehabilitative efforts would non-productive.

4.  At the time separation action was initiated, the applicant acknowledged that he might be issued an under other than honorable conditions discharge.  He elected not submit a statement in his own behalf.  His repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.  There is no evidence in his records and he has provided no evidence to show that his discharge was unjust.  He has also not provided evidence sufficient to mitigate the character of his discharge.

5.  The evidence of record confirms his discharge from active duty processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering all the facts of the case.
6.  The applicant’s period of active duty service began and ended after the issuance of discharges under the provisions of Army Regulation 615-360, Section 8.  If he had qualified for a medical discharge for psychological/
psychiatric reasons, such discharges during his period of service, were handled under the provisions of Army Regulation 635-40.

7.  The applicant's desire to have his discharge upgraded so that he can qualify for medical benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits.

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)                                         AR20100001009



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)