IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110009523 


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 (UOTHC) discharge be upgraded.

2.  The applicant states his discharge should be upgraded because the Army did not take him to the doctor to find out what was wrong with him.  The Army just said his head or his brain was not right and gave him a dishonorable discharge.  When he got home he went to the doctor.  He is bipolar and on medication.  He also has depression.  He does not think his discharge was fair and now wants it changed to show he was discharged due to his medical condition.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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.  On 7 June 1977, the applicant enlisted in the Regular Army.  He completed basic combat training and was assigned to Fort Benjamin Harrison, Indiana, for advanced individual training (AIT) in military occupational specialty 75B (Unit Clerk).  The available records are unclear as to whether he completed this AIT.

3.  The applicant accepted nonjudicial punishment for being absent without leave (AWOL) from 5 to 27 October 1977 (23 days).

4.  On 2 December 1977, the applicant was again AWOL.  He was returned to duty on or about 17 March 1978 (83 days).

5.  On 23 March 1978, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

6.  The applicant's service medical records were not available for review.  However, his report of medical history and report of medical examination both dated 23 March 1978, indicate he was in good health.  Neither report makes mention of any mental health issues.

7.  On 28 March 1978, charges were preferred under the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 2 December 1977 to on or about 18 March 1978.

8.  On or about 28 March 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

9.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 11 April 1978, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (UOTHC Discharge Certificate).  On 18 April 1978, the applicant was discharged accordingly.  He had completed a total of 6 months and 5 days of creditable active duty service and had approximately 106 days of lost time.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Under the UCMJ, the maximum punishment allowed for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC is normally considered appropriate.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, provides 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because he was not right in the head.  He further contends that he should have been discharged based on his medical condition.

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

3.  The applicant underwent a mental status evaluation that determined he was mentally responsible and able to distinguish right from wrong.  There is no available documentary evidence in his military records showing or suggesting that his ability to know right from wrong was impaired in any way, or that any such impairment was the direct cause of his two periods of AWOL.

4.  His lengthy period of lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20110009523





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009523



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1