IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100017648 


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 to a general discharge.

2.  The applicant states his bipolar disorder and paranoid schizophrenia were the reasons he could not adapt to the military and he should be awarded at least a general discharge under honorable conditions.

3.  The applicant provides Ozark Guidance, Inc. medical records for the period
2 April 2009 through 30 November 2009; and two Department of Veterans Affairs (VA) claim applications, dated 20 June 2000 and 16 February 2010, respectively.

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 enlisted in the Regular Army on 14 September 1982. 

3.  On 17 October 1983, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 5 July 1983 to on or about 7 October 1983.  The record shows he was apprehended by civilian authorities in San Francisco, CA and he was subsequently returned to military control.

4.  On the same date, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  

5.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an under other than honorable conditions discharge which would deprive him of many or all benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.

6.  In his request for discharge, he 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 was 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.  He did not submit statements in his behalf.

7.  On 31 October 1983, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.

8.  On 10 November 1983, he was discharged accordingly.  He had completed 10 months and 23 days of creditable active military service and accrued a total of 94 days of time lost due to being AWOL.

9.  Available records do not contain a copy of his separation physical examination.
10.  There is no evidence he applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  In support of his application he provides his VA claim applications and medical treatment records from Ozark Guidance, Inc.  These medical records show he was incarcerated for 20 years for armed robbery and released on
19 February 2009.  He sought treatment for anxiety and mood swings and he was subsequently diagnosed with paranoid schizophrenia, polysubstance dependence, bipolar disorder versus substance induced mood disorder, anxiety disorder, and major depressive disorder moderate to severe with psychosis.  

12.  The documents submitted by the applicant show he was enrolled in the Alcohol & Drug Abuse Prevention and Control Program (ADAPCP) on 5 July 1983, which is the same date he was reported AWOL.

13.  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.

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.  Under the Manual for Court-Martial, the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence is insufficient to show his period of AWOL was a direct result of a mental condition.  However, the documents submitted by the applicant shows his chain of command attempted rehabilitation by enrolling him in the ADAPCP.  However, the applicant went AWOL on the same day and remained in that status for 94 days until he was apprehended by civilian authorities and returned to military control.

2.  His 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 therefore were appropriate considering all the facts of the case.

3.  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)                                         AR20100017648



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ABCMR Record of Proceedings (cont)                                         AR20100017648



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