IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012690 


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 honorable. 

2.  The applicant states he has been diagnosed with bipolar [disorder] and feels this was a major factor in his behavior while in the service.

3.  The applicant provides three statements of support.

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 on 8 January 1987 he enlisted in the Regular Army.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 27F (Vulcan Repairer).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  Item 14 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal (1st Award), Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-16], and the Driver and Mechanic Badge with Wheeled Vehicle Bar.

4.  His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for the following:

* On 24 March 1989, violation of a lawful general regulation by having a blood alcohol level in excess of 0.5%
* On 11 June 1990, the wrongful use of marijuana
* On 18 June 1990, violation of a lawful general regulation by having a blood alcohol level in excess of 0.5%

5.  His records contain a DA Form 3822-R (Report of Mental Status Evaluation), dated 20 July 1990, wherein the division psychologist states he was seen at Mental Health at the command's request and states he did not have a psychiatric disease or disorder which warranted disposition through medical channels, he did have a chemical abuse problem, and he was psychiatrically cleared for any administrative action deemed appropriate by the command.

6.  On 1 August 1990, at Wurzburg, Germany, he was notified by his commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for the serious offenses of use of marijuana and violation of a lawful general regulation.  He was told the least favorable characterization he could receive was a general discharge under honorable conditions.

7.  On 1 August 1990, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general, under honorable conditions discharge; and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  He further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

8.  On 1 August 1990, his chain of command recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12c.

9.  On 1 August 1990, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c and directed issuance of a General Discharge Certificate.  On 21 August 1990, he was discharged accordingly.  
The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, by reason of misconduct - commission of a serious offense with an under honorable conditions characterization of service.  He completed a total of 3 years, 7 months, and       14 days of creditable active service with no lost time.

10.  A statement of support provided by the applicant, dated 2 February 2010, states he completed 6 months in a residential drug and alcohol treatment program and showed a desire to change his life.

11.  Two other statements of support, dated 10 and 26 February 2010, in effect state he is a dedicated father and a good person.

12.  Army Regulation 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, 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

13.  Army Regulation 635-200, paragraph 3-7a, 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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  He contends his discharge should be upgraded because he has been diagnosed with bipolar disorder and this was a factor in his behavior while in the service.  There is no evidence, nor does he provide any evidence, to support this contention.  Records show he did not have a psychiatric disease or disorder at the time of his military service and was psychiatrically cleared for administrative separation.

3.  The evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three occasions for abuse of alcohol and illegal drugs.  Accordingly, his immediate commander initiated separation action against him.
 
4.  His 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 reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he abused alcohol and illegal drugs during his military service.

6.  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)                                         AR20100012690





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ABCMR Record of Proceedings (cont)                                         AR20100012690



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