IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010531 


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 under other than honorable conditions be upgraded to general under honorable conditions.

2.  The applicant states that while on active duty, the onset of his mental illness, manic depressive bipolar I, occurred.  His behavior was a direct result of his mental condition.  He did not realize the connection until recently.

3.  The applicant further states bipolar disorders usually begin in adolescence or early adulthood.  He joined the Army at age 17 and was discharged at age 20.  A detailed history of his mental disorders shows that his mental illness occurred while he was in the service.  The right thing to do is to acknowledge his disease and upgrade his discharge.

4.  The applicant provides copies of his two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a letter from his physician, and an information paper titled "Bipolar Disorder."

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.  In September 1988, the applicant enlisted in the U.S. Army Reserve.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).  He was discharged from the U.S. Army Reserve in June 1989.

3.  On 27 June 1989, the applicant enlisted in the Regular Army.  While still in a training status, he was absent without leave (AWOL) for 10 days in August 1989.

4.  In November 1989, the applicant completed advanced individual training and was awarded military occupational specialty 93C (Air Traffic Control).  He was subsequently assigned for duty in the Republic of Korea.

5.  On 6 December 1989, the applicant was assigned to the 1st Battalion, 506th Infantry Battalion, 2nd Infantry Division, for duty as a rifleman.  He completed his overseas tour of duty and returned to the United States for duty at Fort Benning, Georgia.

6.  On 28 December 1990, the applicant was assigned to the 1st Battalion, 29th Infantry Regiment, for duty as an air traffic control tower operator.

7.  The applicant was AWOL for 93 days from 11 March 1991 to 12 June 1991.  On 17 June 1991, charges were preferred for this period of AWOL.

8.  On 17 June 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

9.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 11 July 1991, the separation authority approved the applicant's request for discharge and directed that he be issued a discharge under other than honorable conditions.  Accordingly, on 19 July 1991 the applicant was discharged.  He completed a total of 1 year, 9 months, and 9 days of creditable active duty service.

11.  On 5 October 2005, the Army Discharge Review Board considered the applicant's request for an upgrade of his discharge.  The board determined that his discharge was proper and equitable and denied his request.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Under the Uniform Code of Military Justice, the maximum punishment allowed for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

14.  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.

15.  The applicant provided a letter from the North Rock Medication Clinic, dated 22 February 2010, stating he has been receiving services from this clinic since 24 June 2009 and is being treated for bipolar disorder and polysubstance.  He is currently taking 300 milligrams of Welbutrin XL and 500 milligrams of Depakote ER.  His condition is in early full remission.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to general under honorable conditions because his misbehavior was a direct result of his manic depressive bipolar I condition that occurred while serving on active duty.

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

3.  The applicant's contention that the onset of his mental illness occurred while he was on active duty and that it was the proximate cause of his misconduct is not sufficiently supported by the available evidence.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His 93 days of lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100010531



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ABCMR Record of Proceedings (cont)                                         AR20100010531



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