IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110000286 


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 general discharge to a fully honorable discharge.

2.  The applicant states he was discharged for misconduct, because it was said that he was setting fires to buildings at Fort Drum, NY.  Prior to discharge he underwent a mental status evaluation for problematic behavior.  Nothing abnormal was found during this evaluation.  However, out of the 9 reports he received from his peers, one corporal suggested that he (the applicant) might have been suffering from bipolar disorder.  The corporal did admit that he was not a mental health professional; however, he felt the applicant should have been reevaluated because of his behavior.  The Army did not take this into consideration.  Following his wrongful discharge he was diagnosed with a bipolar disorder by a civilian doctor in Flint, MI.  It was the same condition that the corporal stressed but the Army ignored.  The mental status evaluation that he received while he was in the Army was poor and lacked substance.  He is now receiving social security due to his disability.  He believes the Army was partly at fault because his bipolar disorder was caused by his training.  He would now like to receive the benefits that he worked for during his military service.  

3.  The applicant did not provide any evidence.

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 on 26 October 1994.  He completed the training requirements and he was awarded military occupational specialty 55B (Ammunition Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  His records contain an extensive history of negative counseling by members of his chain of command for various infractions including:

* Failure to follow instructions
* Disobeying lawful orders
* Failure to report/missing formation
* Loss of military bearing
* Multiple instances of disrespect
* Insubordination
* Disrupting training
* Failure to be at his appointed place of duty

4.  On 20 September 1995, in view of his repeated misconduct, he underwent a mental status evaluation.  He was described as being fully alert and oriented with passive behavior and a depressed mood.  His thought process was clear and his memory was good.  He had the mental capacity to understand and participate in administrative proceedings.  He was mentally responsible and met the retention standards of chapter 3 of Army Regulation 40-501 (Standard of Medical Fitness). He was cleared for administrative separation deemed appropriate by his chain of command. 

5.  On 21 September 1995, he also underwent a physical examination wherein he was found fully qualified for retention or separation.

6.  On 2 October 1995, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully communicating a threat to kill another Soldier and his family and wrongfully communicating a threat to burn down a couple of things.
7.  On 24 October 1995, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct - a pattern of misconduct.  Specifically, the immediate commander cited the applicant as having communicated a threat to injure himself and others, while burning down buildings, disobeying orders, numerous instances of failure to report, and a loss of bearing.  He recommended the issuance of a general discharge.

8.  On 26 October 1995, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to submit a statement on his own behalf.

9.  The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

10.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - pattern of misconduct.  The immediate commander recommended the issuance of a general discharge.

11.  On 30 October 1995, the applicant's intermediate commander recommended approval of the recommendation with the issuance of a general discharge.

12.  On 31 October 1995, the separation authority approved the recommendation under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct and directed the issuance of a general discharge.  Accordingly, the applicant was discharged on 9 November 1995.  

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct with a general discharge.  This form further confirms he completed a total of 1 year and 14 days of creditable active military service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of misconduct culminating in his communicating a threat to injure and/or burn down things.   Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  In connection with his separation processing and in response to his misconduct, he underwent a mental status evaluation wherein he was found mentally responsible.  There is no evidence in his records and he failed to provide any evidence that shows he suffered from a mental disorder at the time.  

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20110000286



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ABCMR Record of Proceedings (cont)                                         AR20110000286



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