IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100020975 


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 that his discharge be upgraded to honorable. 

2.  The applicant states his discharge was unjust because he did not recognize he had mental illnesses that includes schizophrenia, depression, and anxiety.  He states he was diagnosed in 1996, but the symptoms of his illnesses started when he was in the military.  Due to his mental health limitations, he used alcohol and was drunk when he committed the offense.  He does not have his military medical records to support his statements regarding his mental health.  He has completed an alcohol rehabilitation program.  He concludes by stating he acted out of character when he was in the service and his discharge prevents him from getting a good job.  As he is a good citizen, it would be in everyone's best interest to upgrade his discharge so he can make a difference. 

3.  The applicant did not provide documentary evidence in support of his application. 

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 13 November 1991 for a 6-year period of service.  He completed his initial entry training and he was awarded military occupational specialty 67V (Observation Scout Helicopter Repairer).  

3.  The applicant received a psychiatric examination on 27 August 1992.  The division psychiatrist diagnosed the applicant with alcohol abuse, adult antisocial behavior and occupational problems.  In his summary, he states the applicant had participated in the Track III Alcohol and Drug Rehabilitation Program.  He was medically treated with Antabuse for his alcohol dependency.  At the time, the applicant was 20 years old with only 9 months in the military service.  In addition, he stated the applicant had engaged in self-mutilation.  He concluded by stating the applicant did not demonstrate a psychiatric disorder or defect that would warrant disposition through medical channels. 

4.  By a sworn statement, the applicant admitted to starting a fire at approximately 0200 hours on 23 January 1993 near his barracks.  He also admitted to using Government furniture to fuel his fire. 

5.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violation of a lawful general order; to wit, exiting the limits of a camp in Korea, for arson and willfully damaging Government property. 

6.  During a mental status evaluation on 27 January 1993, the applicant was found to be mentally responsible, able to distinguish right from wrong with the ability to adhere to the right, and to have met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

7.  On 8 February 1993, his commander notified him that action was initiated to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The justification for initiating the separation action was simple arson and willful destruction of Government property.  The applicant acknowledged receipt of this separation notification.

8.  The commander advised him of his right to be represented by counsel, to submit written statements in his own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  He was informed he could request a hearing before an administrative board.

9.  On 9 February 1993, he consulted with counsel and elected not to submit personal statements on his own behalf.  The applicant waived consideration and a personal appearance before an administrative separation board.  He indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions.  He acknowledged that he understood he would be ineligible for many or all benefits as a Veteran under both Federal and state laws if he were separated under other than honorable conditions.  

10.  On 9 February 1993, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense, simple arson and damage to Government property.  The commander recommended an Under Other Than Honorable Conditions Discharge Certificate.  In addition, the commander stated the applicant had received an Article 15 under the UCMJ for the aforementioned offenses and that he had participated in the Drug and Alcohol Rehabilitation Track II program.

11.  The appropriate authority approved the applicant's discharge from the service and directed the issuance of an under other than honorable conditions discharge on 25 February 1993.  

12.  On 10 March 1993, the applicant was discharged.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct for commission of a serious offense with an under other than honorable conditions characterization of service.  He had completed 1 year, 3 months and 28 days of creditable active service.  

13.  There is no evidence to show the applicant applied to the Army Discharge Review Board within its established 15-year statute of limitations for a discharge upgrade.

14.  References:

	a.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

	b.  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.

	c.  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.

	d.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The combined maximum punishment for simple arson and destruction of Government property is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 10 years, reduction to the lowest enlisted grade and forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he had undiagnosed mental illnesses at the time of his service.  

2.  While on active duty, the applicant was diagnosed with alcohol abuse, adult antisocial behavior and occupational problems.  He received medical treatment and participated in the Track III Alcohol and Drug Rehabilitation Program.  After a psychological examination, the psychiatrist concluded the applicant did not demonstrate a psychiatric disorder or defect that would warrant disposition through medical channels. 

3.  Based on the evidence of record, the applicant's company commander initiated separation action against him for arson and damaging Government property.  This offense is a violation of the UCMJ with the combined maximum punishment under the Manual for Courts-Martial of a punitive discharge, maximum confinement of 10 years, reduction to the lowest enlisted grade and forfeiture of all pay and allowances.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief to upgrade his 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)                                         AR20100020975





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ABCMR Record of Proceedings (cont)                                         AR20100020975



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