IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100011676 


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 upgrade of his under other than honorable conditions discharge so he will be eligible to receive veterans' benefits and disability pay.

2.  He states that he has suffered from schizophrenia his entire life.  He attests he was informed by military doctors that he had schizophrenia and acute depression, but he was discharged without any help or benefits.  He further states he receives Social Security disability pay, but he needs an upgrade of his discharge in order to be eligible for veterans' benefits.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an Encounter Report from Riverhills Healthcare, Inc., located in Cincinnati, OH, dated 26 August 2008 (printed on 19 March 2009).

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.  His record shows he enlisted in the Regular Army on 26 February 1985.  Upon completion of initial entry training, he was awarded military occupational specialty 57H (Cargo Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2; however, at the time of his discharge, he held the rank/grade of private (PV1)/E-1.

3.  He underwent his pre-enlistment medical examination on 29 January 1985.  The Standard Form (SF) 93 (Report of Medical History) he rendered at the time shows he indicated he had no history of any medical condition.  He also hand wrote the statement "I am in excellent health" on this form and authenticated it with his signature.  The SF 88 (Report of Medical Examination) rendered by the examining physician shows he was not diagnosed with any medical condition at the time.

4.  His record reveals his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully pushing another Soldier in the chest and for disobeying a lawful order from a commissioned officer by having an unescorted guest in his room after visitation hours.

5.  As a result, he underwent a mental status evaluation on 23 August 1985.  The examiner noted that his behavior was aggressive, he was fully oriented, his mood was unremarkable, his thinking process was clear, his thought contact was normal, his memory was good, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  The examiner also opined that the applicant was having difficulty coping with his interpersonal relationships and suggested counseling by his unit or a chaplain may alleviate the situation.  Ultimately, he was psychiatrically cleared for any administrative proceedings deemed appropriate by the command.

6.  On 14 January 1986, he was apprehended by the military police and charged with wrongful transfer of Government property for giving his military Identification Card to a gas station attendant and promising to return to pay for the gas, which he failed to do.

7.  His record contains a DD Form 458 (Charge Sheet), dated 12 February 1986, that shows he was charged with multiple offenses and referral for trial at a Special Court-Martial empowered to adjudge a Bad Conduct Discharge.  The charges and specifications were as follows:

	a.  Four specifications of violating Article 86, UCMJ, by failing to go at the time prescribed to his appointed place of duty on two occasions and for being absent without leave (AWOL) on two occasions from or about 11 December 1985 until on or about 6 January 1986 and from on or about 29 January 1986 until apprehended on 11 February 1986.  He was dropped from the rolls (DFR) of his unit prior to returning to military control.

	b.  Two specifications of violating Article 91, UCMJ, by disobeying a lawful order from a senior noncommissioned officer on two occasions.

	c.  One specification of violating Article 108, UCMJ, by neglectfully damaging government property.

8.  On 13 February 1986, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct or a dishonorable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In his request for discharge he indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  His chain of command recommended approval of his request with an under other than honorable conditions discharge.

10.  On 27 February 1986, the separation authority approved his request and directed issuance of a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).

11.  His record contains a DA Form 2496 (Disposition Form), dated 27 February 1986, which shows he voluntarily elected not to undergo a medical examination prior to separation from active duty.

12.  On 28 February 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 10, and issued a DD Form 794A.  He had completed 10 months and 27 days of creditable active service.  He also was credited with 38 days of time lost due to his periods of AWOL.

13.  His record is void of any evidence and he has not provided any evidence showing he was diagnosed with any type of psychiatric disorder, either prior to or during his period of active service.

14.  He provides an Encounter Report from Riverhills Healthcare, Inc., which documents a session he had with a physician on 21 August 2008.  This document shows his primary complaint at the time of this session was severe mechanical low back pain, but the physician also noted he was seeing another doctor who had diagnosed him with bipolar affective disorder and possible schizophrenia.

15.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although he provides documentation showing he was recently diagnosed with a mental disorder, his record is void of any evidence and he has not provided any evidence showing he was diagnosed with any type of psychiatric disorder either prior to or during his period of active service.  Therefore, his claim that military doctors informed him that he had schizophrenia and acute depression, but he was discharged without any help or benefits, is unsupported by the evidence of record.

3.  His record reveals a disciplinary history that includes adverse counseling and acceptance of NJP under the provisions of Article 15 of the UCMJ.

4.  His record also shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200,
chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge.  The ABCMR also does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20100011676



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ABCMR Record of Proceedings (cont)                                         AR20100011676



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