IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007319 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge should be upgraded:

* Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge
* He never saw a psychiatrist or mental health for an evaluation.
* His service was impaired by his youth and immaturity
* His behavioral problems resulted from personal problems that impaired his ability to serve
* His disciplinary record shows only minor offenses
* He has been a good citizen since his discharge
* He was diagnosed with bi-polar manic depression approximately 2 years after his discharge, and
* He could have continued to serve had he been diagnosed and placed on medication

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and two letters from a physician indicating he has been treating the applicant for bipolar affective disorder that was diagnosed in 1976.



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 was born on 7 December 1954 and enlisted in the Regular Army on 8 June 1973 for a period of 3 years, training as a cook and assignment to Fort Sill, Oklahoma.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training at Fort Dix, New Jersey before being assigned to Fort Sill, Oklahoma for his first and only duty assignment.

3.  On 19 November 1973, he went absent without leave (AWOL) and remained absent until he was returned to military control on 4 December 1973.  Nonjudicial punishment was imposed against him for the AWOL offense on 12 December 1973.

4.  The applicant again went AWOL on 19 December 1973 and remained absent until he was returned to military control at Fort Knox, Kentucky on 30 January 1974.  On 1 March 1974, he again went AWOL and remained absent until he was returned to military control at Fort Knox on 13 March 1974.

5.  On 1 May 1974, he was convicted by a special court-martial of being AWOL from 19 December 1973 to 30 January 1974 and from 1 March to 13 March 1974.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and reduction to the pay grade of E-1.

6.  On 8 May 1974, he was transferred to the United States Army Retraining Brigade at Fort Riley, Kansas.

7.  On 30 May 1974, the applicant was referred to a social worker by his chain of command.  The applicant indicated that he wanted out of the Army the quickest possible way.  The social worker, a medical service corps officer, indicated that the applicant showed no symptoms or history of a limiting character and behavior disorder and returned him to his unit. 
8.  On 6 June 1974, he underwent a mental status evaluation and was determined to be mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  No significant mental illness was noted.

9.  On 13 June 1974, the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, due to unfitness.  The commander indicated that discharge for unsuitability was not deemed appropriate because the applicant's behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability.  He further stated that the applicant had the mental and physical ability to be an effective Soldier; however, it was obvious that his primary objective was to be eliminated from the service by any means.

10.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

11.  The appropriate authority approved the recommendation for discharge on 18 June 1974 and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged on 20 June 1974 under the provisions of Army Regulation 635-200, chapter 13, due to unfitness based on frequent involvement in incidents of a discreditable nature with civil/military authorities.  He had served 6 months and 1 day of total active service and had 192 days of lost time due to being AWOL and in confinement.

13.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability of those individuals whose rehabilitation was considered to be impracticable.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent involvement in incidents of a discreditable nature, several specific types of misconduct (sexual perversion, homosexual acts, drug abuse, an established pattern of failure to pay just debts or to support dependents) and shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions and supporting documents were considered; however, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service during such a short period of time.  

4.  Given the repeated nature of his misconduct and the fact that he was afforded an opportunity to be restored to duty and chose not to do so, his service simply does not rise to the level of even a discharge under honorable conditions.  

5.  The applicant’s contention that he suffered from a mental illness that prevented him from serving effectively has been noted and appears to lack merit.  The applicant was seen by a social worker and he underwent a mental status evaluation and both examining officials essentially came to same determination.  Neither officials detected any mental illness or behavior disorders and it was determined that he could distinguish right from wrong.

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)                                         AR20100007319



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ABCMR Record of Proceedings (cont)                                         AR20100007319



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