IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018266 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.  

2.  He states his mental illness began when he was on active duty.

3.  He provides:

* Four letters from family members
* Several mental health reports
* Medical statements
* Six Records of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)
* DD Form 214 (Report of Separation from Active Duty)

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 23 September 1975.  

3.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, UCMJ on eight occasions for the following offenses:

* Failing to go to his appointed place of duty at the prescribed time 
* Being absent without leave (AWOL) from 25 to 28 June 1977, 
   8 to 9 August 1977, and from 23 to 26 August 1977
* Failing to obey a lawful order
* Breaking restriction

4.  The applicant's unit commander notified him of the pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5a(1), for unfitness – frequent incidents of a discreditable nature with civil or military authorities.  He was advised of his rights.  He consulted with legal counsel, waived a hearing of his case by a board of officers, and did not submit statements in his own behalf.  

5.  He underwent a mental status evaluation on 13 July 1977.  The evaluation determined his:

* behavior was normal 
* level of alertness and orientation was “fully”
* mood was level and thinking process was clear
* thought process and content was clear and normal and his memory was good  

6.  His mental status evaluation also determined he had no significant mental illness and he:

* was mentally responsible, able to distinguish right from wrong
* was able to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* met the retention standards prescribed in Chapter 3, Army Regulation   40-501 (Standards of Medical Fitness) 



7.  The separation authority’s approval is not available.  However, his DD Form 214 shows he was separated on 2 September 1977 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) based on unfitness – frequent incidents of a discreditable nature with civil or military authorities with a UOTHC Discharge Certificate.  He completed 1 year, 11 months, and 6 days of active military service with 4 days of lost time.  

8.  He provided four letters from his family members who attested that he did not have any signs or symptoms of mental disorders or substance abuse until he entered the service.  He has received psychiatric help over the years.  

9.  His Psychological Report, dated 6 April 1982, from the Winnebago Mental Health Institute shows he was diagnosed as suffering from schizophrenia disorder, residual type.  His final summary indicated his secondary and third diagnoses as passive-aggressive dependent personality with marked antisocial features and a history of drug abuse.  

10.  His discharge summaries, dated 8 August 1980 and 17 March 1981, from the Norwood Health Center, indicated his diagnoses as psychotic reaction, acute schizophrenia, paranoid type by history.  

11.  In a 6 October 2009 letter, a physician from the Portage County Health and Human Services indicated the applicant first began having difficulties with chronic paranoid schizophrenia during his time in the service.  

12.  On 17 July 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1) of the regulation provided, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A UOTHC discharge was 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service does not indicate that an error or injustice exists in his case.  
2.  He contends that his mental illness began when he was on active duty; however, his service record is void of evidence to support his claim.  The evidence of record shows that prior to his separation the applicant underwent a mental status evaluation which determined he was mentally responsible, able to distinguish right from wrong, and to adhere to the right.  

3.  His service record shows he received eight Article 15s for various offenses.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his service record is insufficiently meritorious to warrant an upgrade to a general discharge.

4.  The mental health reports he provided were considered.  However, these reports were prepared after he served on active duty.  

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)                                         AR20100018266



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ABCMR Record of Proceedings (cont)                                         AR20100018266



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