BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100016895 


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, in effect, that his under other than honorable conditions discharge be upgraded to show he was medically discharged. 

2.  The applicant states, in effect, his discharge was directly associated with an undiagnosed mental illness.  He states he was unaware of his mental illness, and Army personnel did not diagnose him with mental illness so he did not receive medical treatment during his period of service.  

3.  The applicant provides copies of his civilian medical records.

 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.  On 19 June 1997, the applicant enlisted in the Regular Army for 3 years.  He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's record is devoid of any disciplinary history under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). 

4.  His personnel service records contain a copy of DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) showing he was reported absent without leave (AWOL) from his unit on 23 September 1999 and then reported as dropped from the rolls on 25 October 1999.

5.  On 12 April 2000, civilian authorities apprehended and confined him to the county jail in Milton, WV.  Civilian authorities charged him with fleeing the scene, a traffic violation, destruction of property and driving with a suspended drivers license.  Civilian authorities returned him to military control.

6.  The applicant's separation packet and the complete facts and circumstances pertaining to his discharge are not available for review.  However, his DD Form 214 issued on 15 November 2001 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10 in lieu of trial by court-martial.  He had completed 3 years, 8 months, and 10 days of net active service.  He had lost time from 23 September 1999 to 5 June 2000. 

7.  The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  No medical records including his separation physical examination were available for review.

9.  The applicant provided a civilian mental health evaluation from a psychiatrist with Correctional Managed Care showing he was diagnosed with Bipolar I Disorder Not Otherwise Specified (NOS) on 9 October 2009.  He was treated with medication. 

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months and a forfeiture of all pay and allowances.

	b.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  

   c.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

   d.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begin its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	e.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's separation packet was not available for review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for his extended period of AWOL.  The applicant would have been afforded the opportunity to consult with counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) for which he was charged, and he would have acknowledged that he understood he could receive a discharge under other than honorable conditions.
2.  The applicant did not submit any evidence to show he was diagnosed with Bipolar I Disorder NOS while in an active duty status and entitled to basic pay. 

3.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for separation are appropriate considering the known facts of this case.  Therefore, the applicant has established no basis for changing his under other than honorable conditions discharge to a medical discharge.

4.  In view of the foregoing, there is insufficient evidence to grant changing his discharge to a medical 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)                                         AR20100016895



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ABCMR Record of Proceedings (cont)                                         AR20100016895



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