IN THE CASE OF:
BOARD DATE: 24 May 2011
DOCKET NUMBER: AR20100027528
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 an upgrade of his under other than honorable conditions discharge to a general discharge.
2. The applicant states he was diagnosed with paranoid schizophrenia in the Army and he was not competent to make rational decisions. He has had ongoing psychiatric conditions throughout the years which resulted in years of homelessness. He is now diagnosed with a bipolar disorder.
3. The applicant provides a medical doctor's statement and a list of medications.
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 records show he enlisted in the Regular Army for a period of 4 years on 12 March 1979 and held military occupational specialty 13B (Cannon Crewman).
3. His records show he was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.
4. On 10 September 1979, he departed his Fort Hood, TX, unit in an absent without leave (AWOL) status, but he returned on 24 September 1979.
5. On 20 October 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 10 to 26 September 1979.
6. On 6 May 1981, he was determined to have entered the Army fraudulently. He failed to disclose information concerning his civilian conviction for distribution of an illegal substance and his 12-month probated sentence. His chain of command decided to give him a second chance and recommended his retention in the Army.
7. He served in Germany from 24 July 1981 to 18 October 1981.
8. On 21 August 1981, he entered an outpatient mental health facility in Nuremberg for treatment following his absence from duty as a result of jumping off an Army truck en route to the Grafenwoehr training area in an apparent impulsive act with self-destructive ideation. He related problems with bringing his wife to Germany and stormed out of the clinic. However, he returned 3 hours later after having consumed alcohol. He then assaulted the therapist with abusive language. The clinical psychologist scheduled him for a follow-on appointment.
9. On 22 August 1981, he revisited the same clinic and underwent several interviews and evaluations. The clinical psychologist opined that the applicant had limited potential to assimilate into the military community. Treatment in the immediate area was unavailable and long-term therapy and lifestyle reorientation were required. He recommended enrolling the applicant in an alcohol abuse and prevention program and continuous monitoring or, in the alternative, administrative separation for unsatisfactory performance.
10. On 22 September 1981 subsequent to monitoring his behavior, the applicant's immediate commander referred him for yet another mental status evaluation. After interviewing the applicant and evaluating his behavior, the military psychologist concluded the applicant did not have a psychiatric disorder. He opined that the applicant had no desire to change his present behavior in order to become a productive member of the Army. The applicant was psychiatrically cleared for any administrative action deemed required by his chain of command.
11. On 19 October 1981, he departed his unit in an AWOL status and he was dropped from the rolls as a deserter on 18 November 1981. He ultimately surrendered to military control at Fort Bragg, NC, on 1 December 1981.
12. On 7 December 1981, court-martial charges were preferred against him for one specification of being AWOL from 19 October to 1 December 1981.
13. On 16 December 1981, he underwent a mental status evaluation. He was fully alert and oriented and had normal behavior. He was mentally responsible and he had the mental capacity to understand and participate in administrative proceedings. The medical doctor indicated the applicant's behavior was appropriate. His mental status evaluation did not indicate he was diagnosed with paranoid schizophrenia or that he was not competent to make rational decisions.
14. On 16 December 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).
15. In his request for discharge the applicant indicated he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person. He understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. He further acknowledged he understood that if the discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also elected not to submit a statement on his own behalf.
16. Subsequent to submitting this request, his battalion commander interviewed him. During the interview, the applicant related some issues with his unit commander who had sent him to the field without his field equipment for approximately 20 days. However, during the interview, he was emphatic in his statement that his only desire was to separate from the military. In view of his negative attitude toward the military and lack of any rehabilitative potential, his battalion commander recommended approval of the discharge with an under other than honorable conditions character of service.
17. On 13 April 1982, consistent with the applicant's entire chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by a court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade. On 22 April 1982, the applicant was accordingly discharged.
18. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions. This form further confirms he completed a total of 2 years, 11 months, and 15 days of creditable active military service and he had 57 days of lost time.
19. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.
20. He provides a listing of his medications as well as a letter from a medical doctor, dated 26 October 2010, who states the applicant had been diagnosed with a major depressive disorder and an anxiety disorder.
21. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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.
22. Paragraph 3-7b of Army Regulation 635-200 states 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service.
2. Prior to being AWOL, he was seen on multiple occasions by a military clinical psychologist as well as a therapist. Neither medical official diagnosed him with paranoid schizophrenia. His AWOL and/or desertion were a matter of choice.
3. Upon his return from AWOL, he was again mentally evaluated and he was found mentally responsible and he had the mental capacity to understand and participate in administrative proceedings. The medical doctor indicated the applicant's behavior was appropriate. Again, his mental status evaluation did not indicate he was diagnosed with paranoid schizophrenia or that he was not competent to make rational decisions.
4. His ongoing homelessness and current diagnosis of major depressive disorder and an anxiety disorder is regrettable. However, there is no evidence in his records and he did not submit any substantiating evidence that shows the alleged paranoid schizophrenia.
5. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to a general 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 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) AR20100027528
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ABCMR Record of Proceedings (cont) AR20100027528
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