IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110008667 


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 under other than honorable conditions discharge (UOTHC) be changed to a medical discharge.

2.  He states, in effect, while he was on active duty he had an extreme mental breakdown due to his military-related experiences.  He was hospitalized in the psychiatric unit and issued medication.  After 7 weeks he was released to civilian life without counseling or anything else.  He believes he is mentally disabled and dependent on numerous bipolar medications due to negligence.  He has tried numerous times to obtain records from Fitzsimons Army Hospital, but he could not.  Other records can be obtained through the National Personnel Records Center.  

3.  He provides no additional 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 military records show he enlisted in the Regular Army in pay grade E-1 on 26 July 1976.  He completed training and was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  On 6 October 1976, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties on 2 October 1976.

4.  He was reported absent without leave (AWOL) on 30 November 1976 and returned to duty on 20 January 1977.  

5.  On 26 January 1977, he accepted NJP under Article 15, UCMJ, for being AWOL from 3 December 1976 to 19 January 1977.

6.  A Standard Form 539 (Abbreviated Medical Record), dated 3 March 1977, stated:

   a.  The applicant's problem was acute alcohol intoxication and a character disorder (antisocial type).  Upon admission to Fitzsimons Army Medical Center (FAMC) on 27 February 1977 his mental status was determined to be clear, he was fully oriented, and there was no sign of intoxication.  It was recommended that the applicant receive counseling on drugs and alcohol.
   
   b.  The final diagnosis was alcohol intoxication, acute severe, manifested by suicidal gesture, cutting wrists, and suicidal ideation.  The applicant reported alcohol and drug abuse and that his father was addicted to heroin.  
   
   c.  The applicant was also diagnosed with a personality disorder, antisocial type, chronic, severe, manifested by a life-long pattern of chaos, history of juvenile delinquency, questions of veracity of present history, Article 15, and court-martial within 8 month of military service.  Degree of impairment for further military duty was none and his condition was untreated and unchanged.
   
   d.  It was noted that the applicant did not have a treatable psychiatric disorder.  On his return to active duty he had difficulty functioning and following orders.  It would be in the best interest of the service and the applicant for him to be administratively separated from the service.  He was discharged from FAMC on 28 February 1977.

7.  After being reported AWOL on 3 March 1977 he was dropped from the rolls on 2 April 1977.  He was apprehended by the Federal Bureau of Investigation and returned to military control on 12 July 1977.

8.  On 28 July 1977, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.  

9.  In his statement, he indicated that he went AWOL the first time because his mother was having money problems due to the death of his father.  So he decided it was time he went home to help her out.  He gave his mother the money he had and returned to the service.  One weekend he went home, found more problems, got drunk, slit his wrists, and he was transferred to FAMC.  After talking to one of the doctors it was decided it was time for him to get out of the military.  The doctor contacted his company commander and recommended that he be discharged.  His girlfriend was pregnant, he had to marry her, and he felt the Army was not the best thing for him.  His uncle had promised that he would give him a job when he got out.

10.  On 29 July 1977, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army, Personnel Control Facility, Fort Carson, CO.  He was charged with one specification of being AWOL from 2 March through 12 July 1977.

11.  On 29 July 1977, the applicant's company commander recommended approval of the applicant's request.  The company commander stated that the applicant's conduct and efficiency had been unsatisfactory and the applicant had assured him of the desire to be discharged from the Army.  The company commander recommended the issuance of a UOTHC discharge.

12.  On 29 July 1977, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  He was discharged in pay grade E-1 on 8 September 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and the issuance of a UOTHC Discharge.  He was credited with completing 7 months and 19 days of active service with 178 days of lost time.

14.  On 31 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate.

16.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-35, stated a personality disorder may render an individual administratively unfit rather than unfit because of physical illness or medical disability.  Interference with performance of effective duty associated with that condition will be dealt with through appropriate administrative channels including Army Regulation 635-200.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 26 July 1976.  He was punished (twice) under Article 15 and reported AWOL on 30 November 1976.  He was returned to military control 20 January 1977.  On 27 February 1977, he was admitted to FAMC and diagnosed with acute alcohol intoxication and a character disorder.  No treatable psychiatric disorder was found and it was recommended that he be administratively separated from the service.  He was released on 28 February 1977 and returned to duty.

2.  He was again reported AWOL on 3 March 1977.  Upon his return to military control In July 1977, he voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  

3.  At the time, he acknowledged that he understood he could be issued a UOTHC discharge.  He waived his rights and stated that he felt the Army was not the best thing for him; his uncle had promised him a job when he got out of the military.  The company commander stated that the applicant's conduct and efficiency had been unsatisfactory and recommended the issuance of a UOTHC discharge.

4.  He provided no evidence or a convincing argument to support his contention for entitlement to a medical discharge.  The available evidence shows his condition did not render him unfit because of a physical disability, but resulted in administrative unfitness due to his lack of satisfactory performance of duty.  He was not eligible for a medical separation and he was properly discharged in accordance with pertinent regulations with due process.  

5.  It was determined that he did not have a treatable psychiatric disorder during his period of active service and he acknowledged the reason for separation.  He has submitted neither probative evidence nor a convincing argument to show he had any medical conditions that would have amounted to a disability separation.  Therefore, he is not entitled 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)                                         AR20110008667



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ABCMR Record of Proceedings (cont)                                         AR20110008667


   
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