IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100029368 


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, the court-appointed guardian of a former service member (FSM), requests that the FSM's under other than honorable conditions discharge be changed to a medical discharge.

2.  The applicant states at the time of the FSM's discharge he was suffering from bi-polar depression and post-traumatic stress disorder (PTSD); but no one would admit it.

	a.  The FSM was being harassed by the base noncommissioned officers (NCOs) by making him perform extra guard duty, eat meals-ready-to-eat (MREs) instead of allowing him to go to the dining facility, denying him furloughs, and making him do more work than the other Soldiers.

	b.  A sergeant asked the FSM if he was bi-polar but there was never any follow-up done.

	c.  As the harassment increased, the FSM's captain advised the FSM to go absent without leave (AWOL).  Once he returned from being AWOL the promotions he applied for became null and void.  The harassment started again and continued until he was separated in 2003.




	d.  The applicant believes the following are reasons the FSM's discharge should be changed to a medical discharge:

		(1)  Clemency is warranted because it is an injustice for the FSM to continue to suffer the adverse consequences of his discharge.

		(2)  He received promotions that showed he was a good Solder.

		(3)  He only received one Article 15 for being AWOL because he was told by his captain to go AWOL.

		(4)  He faced racial discrimination.  He had applied for promotions and was denied.

		(5)  Psychiatric problems impaired his ability to serve so he needed a way out.

		(6)  His command abused its authority when the FSM was issued an under other than honorable conditions discharge.

3.  The applicant provides:

* two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim)
* a Letter of Guardianship from the State of Michigan Probate Court, Wayne County
* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 2 May 2003

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 FSM enlisted in the Regular Army on 30 July 1999 for a period of 3 years. He reenlisted on 6 September 2001 for a period of 6 years.  He was assigned military occupational specialty 92Y (Unit Supply Specialist).

3.  On 4 March 2002, he accepted nonjudicial punishment (NJP) for the wrongful use of marijuana between on or about 17 December 2001 and 17 January 2002.

4.  On 7 February 2003, the FSM received a mental status evaluation because he was being considered for discharge due to misconduct.  According to a DA Form 3822-R (Report of Mental Status Evaluation) the examiner found the FSM met the physical retention standards prescribed in Army Regulation 
40-501 (Standards of Medical Fitness).  The examiner further determined the FSM was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in separation proceedings.

5.  On 13 February 2003, the FSM pled guilty and was found guilty at a summary court-martial of:

* being AWOL from on or about 8 July to 12 November 2002
* being AWOL from on or about 18 December 2002 to 30 January 2003
* wrongful use of marijuana between on or about 11 November and 
11 December 2002

6.  On a DD Form 2807-1 (Report of Medical History), dated 1 April 2003, the FSM indicated he had been evaluated or treated for a mental condition.  However, there is no explanation in item 29 of the form.

7.  The FSM received a separation medical examination on 1 April 2003.  The DD Form 2808 (Report of Medical Examination) does not indicate the FSM was diagnosed or treated for bi-polar depression or PTSD during his active service.

8.  On 8 April 2003, the FSM's commander notified him that action was being initiated to separate him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) for the commission of a serious offense with an under other than honorable conditions discharge.  The reason for the proposed action was the FSM's court-martial conviction for wrongful use of marijuana and being AWOL on two occasions.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

9.  On 11 April 2003, the FSM submitted a statement acknowledging he had been advised by counsel of the basis for the contemplated separation action for commission of a serious offense.  The applicant waived a board of officers and did not submit statements in his own behalf.  The applicant acknowledged that as a result of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

10.  The FSM's commander recommended that he be eliminated from the service before the expiration of his term of service for commission of a serious offense.  The commander stated the FSM received a summary court-martial conviction for wrongful use of marijuana and for going AWOL on two occasions.  The commander recommended the requirement for a rehabilitative transfer be waived because he believed:

* the FSM would create serious disciplinary problems or hazard to the military mission
* it would be inappropriate because he was resisting rehabilitation attempts
* further attempts of rehabilitation would not be in the best interests of the Army

11.  The appropriate authority approved the recommendation for the FSM’s discharge under the provisions of paragraph 14-12c, Army Regulation 635-200 with the issuance of an under other than honorable conditions discharge.  

12.  On 2 May 2003, the FSM was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct.  He had completed 
1 year, 7 months, and 24 days of active service during the period under review that was characterized as under other than honorable conditions.  

13.  The FSM's service medical records were not available for review.

14.  On 4 March 2004, the applicant was appointed full guardian of the FSM by the State of Michigan Probate Court of Wayne County.


15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 14-12c provided for the separation of a Soldier by reason of the commission of a serious offense, which included drug abuse.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence the applicant was present during the FSM's period of service.  The applicant's contentions the FSM was harassed by base NCOs, his captain told him to go AWOL, he faced racial discrimination, and that he had psychiatric problems which impaired his ability to serve are based on a history provided by the FSM.  There are no documents or other evidence to corroborate these contentions.  Therefore, they were not considered as mitigating factors in the determination of this case.

2.  The applicant also contends the FSM only had one Article 15 for being AWOL. However, the records show he received NJP on 4 March 2002 for wrongful use of marijuana and he was convicted by a summary court-martial on 13 February 2003 for wrongful use of marijuana and two specifications of being AWOL.

3.  The available evidence shows the FSM was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  Therefore, the FSM's command was acting within the regulations and there was no abuse of its authority when he was processed for separation under the provisions of chapter 14 of Army Regulation 635-200.

4.  Although the applicant contends a grant of clemency is warranted in the FSM's case, there is no evidence to substantiate this contention.  The ABCMR does not change discharges based solely on the passage of time.

5.  The FSM's service medical records were not available for review.  The medical examination he was given on 1 April 2003 did not show the FSM was diagnosed or treated for bi-polar depression or PTSD.  There is no evidence the FSM was diagnosed or treated for these conditions while in the Regular Army.  Therefore, there is no evidence to support changing the FSM's discharge to a medical discharge.
6.  In view of the above, there is no basis to change the FSM's under other than honorable conditions 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)                                         AR20100029368



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029368



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1