IN THE CASE OF:	  

		BOARD DATE:	    11 January 2011

		DOCKET NUMBER:  AR20100016778 


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 undesirable discharge be upgraded. 

2.  He states when he entered the military he was unaware that he suffered with bipolarism.  He adds he had a few episodes in basic training, but during his job training is when the bipolarism surfaced again.  He says about 20 years ago he was diagnosed as being bipolar.  He offers his work history is a long list of quitting, getting fired, missed promotions, and long periods of unemployment.  He states the draft dodgers were pardoned by the President for serious crimes and opines a harsh sentence is for a harsh crime.  Therefore, he questions the harshness of an undesirable discharge for a few days of being absent without leave (AWOL).  He concludes an unsuitable discharge would be more of a "just" sentence.

3.  He provides his self-authored statement.

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 he enlisted in the Regular Army on 30 January 1970. 

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* being AWOL from 24 August 1970 to 26 August 1970
* being AWOL from 15 September 1970 to 16 September 1970

4.  Headquarters, Special Processing Battalion, Fort George G. Meade, Maryland, Special Court-Martial Order Number 142, dated 18 February 1971, shows he was found guilty of being AWOL from 29 September 1970 to 
26 November 1970.

5.  On 10 April 1971, he underwent a mental status evaluation and he was determined to be mentally cleared for separation by the examining psychiatrist.  The psychiatrist said his mental examination was within normal limits.  He added the applicant displayed no evidence of a thought disorder and he was oriented, rational, coherent, relevant, and logical.

6.  On 27 May 1971, he consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

7.  He acknowledged that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions.

8.  On 1 June 1971, the Commander, U.S. Army Personnel Control Facility (PCF), Fort George G. Meade, recommended his separation under the provisions of Army Regulation 635-212 for unfitness.  The  Commander stated the discharge was recommended because of his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.

9.  On 11 June 1971, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness.  He directed the applicant be furnished an Undesirable Discharge Certificate.

10.  His DD Form 214 shows he was discharged under conditions other than honorable on 11 June 1971 and issued an Undesirable Discharge Certificate.  The reason and authority for discharge was listed as Army Regulation 635-212. He completed 1 year and 19 days of total active service with 113 days lost time.

11.  On 25 October 1974, he appealed to the Army Discharge Review Board to upgrade his discharge.  On 28 March 1975, the board denied his request for a discharge upgrade.  

12.  Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; 
(3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Paragraph 6b of the same regulation provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

15.  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 argument that he was unaware of his bipolarism and, in effect, his condition led to his indiscipline was considered.  However, his records show he was evaluated by a competent psychiatrist who found that he displayed no evidence of a thought disorder and he was oriented, rational, coherent, relevant, and logical.  The psychiatrist did not find any medically disqualifying condition.  Therefore, his contention is not sufficient as a basis for upgrading his discharge. 

2.  He also argues that an unsuitability discharge would be more of a just sentence.  As defined in paragraph 13 of this document, in order to be separated for unsuitability, inaptitude, character and behavior disorders, apathy, defective attitudes and inability to expend effort constructively, alcoholism, enuresis, and/or homosexuality must exist.  There is no evidence and he has not provided any to show that one or more of these conditions existed.  

3.  Evidence of record shows he was separated for "unfitness" as recommended by the PCF commander for repeated commission of petty offenses and habitual shirking.  These conditions are consistent with the conditions cited above for separation for unfitness.  Additionally, as stated in Army Regulation 635-212, when separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  

4.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

5.  He must provide evidence to prove his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  He failed to provide such evidence.

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)                                         AR20100016778





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ABCMR Record of Proceedings (cont)                                         AR20100016778



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