IN THE CASE OF:	  

		BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110004404 


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 upgrade of his general discharge to honorable and waiver of the debt caused by having to repay his enlistment bonus. 

2.  The applicant states the relief is warranted because he had mental illness.  The Department of Veterans Affairs rates him at 30 percent for a bipolar disorder.

3.  The applicant cites a 30 June 1998 VA letter in support of his requests.  However, he provides only a copy of his DD Form 214 (Certificate of Release or Discharge 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 for 4 years with a $6,000 bonus as a combat arms trainee in the Regular Army on 26 September 1994, completed training as an infantryman, and was advanced to pay grade E-3 on 1 May 1995.

3.  Between June 1995 and February 1996, the applicant twice received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice.  He also received seven negative counseling statements for misconduct and only two positive monthly counseling statements.

4.  On 26 March 1996, the company commander notified the applicant of his intent to recommend separation with a general discharge under the provisions of paragraph 14-12b of Army Regulation 635-200 (Personnel Separations).  The company commander noted the separation authority was not bound by the recommendation as to separation or type of discharge.

5.  The applicant consulted with counsel and was advised of his rights.  He elected representation by counsel but declined to submit statements in his own behalf.

6.  A medical examination found him to be qualified for separation with a physical profile of 111111.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear.  He had the mental capacity to understand and participate in the discharge proceedings, was mentally responsible and met retention standards.

7.  The psychiatrist specifically found:

	a.  This individual was and is substantially capable of appreciating the nature of his conduct and of conforming his conduct to the requirements of the law.  He is able to understand and participate in administrative proceedings.

	b.  Clinical evaluation at this time indicates that the applicant does not suffer from a psychiatric disease, defect, or personality disorder that would cause significant defects in judgment or reliability.

8.  The company commander recommended the applicant for separation with a general discharge due to a pattern of misconduct and the battalion commander concurred.  The separation authority approved the separation.

9.  On 23 May 1990, the applicant was separated for misconduct with a general discharge under the provisions of Army Regulation 635-200, chapter 14.  He completed 1 year, 9 months, and 7 days of creditable service.  His awards 
were the National Defense Service Medal, Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Separation action is taken when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Discharge under other than honorable conditions is normally appropriate under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

11.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant says he should have an honorable discharge and be excused from repaying part of his enlistment bonus because he was mentally ill.

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He was specifically found by a psychiatrist to be free of mental illness and responsible for his behavior.

3.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not demonstrate that he was not responsible for his actions.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

6.  There being no basis for any relief on the discharge issue, there is no reason for any action on the recoupment issue.

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)                                         AR20110004404





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ABCMR Record of Proceedings (cont)                                         AR20110004404



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