IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110016556 


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 her discharge under honorable conditions (general) to an honorable discharge.

2.  The applicant states:

* during basic training, she was sent to meet with a counselor because she was considering suicide
* she was discharged during her first pregnancy in 1990 and in less than 1 year later was diagnosed with chronic depression and bipolar disorder
* she was told to have an evaluation done by child protective services and her family
* she believes her discharge should be upgraded due to her mental and physical condition while she was on active duty

3.  The applicant provides:

* VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Statement of Disability, dated 29 September 2009
* Social Security Administration Retirement, Survivors and Disability Insurance Notification, dated 29 July 2010
* Income Withholding for Support Form, dated 14 November 2008
* Social Security Administration Retirement, Survivors and Disability Insurance Notification, dated 14 October 2010
* Department of Employment, Training, Rehabilitation Bureau of Disability Adjudication Notification, dated 18 December 2009

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 in the Regular Army on 5 July 1989.  She completed training as a food service specialist.

3.  The applicant’s records show she was counseled on at least 13 separate occasions between January 1990 and July 1990 for the following offenses:

* reporting late for duty
* below standard uniform appearance
* below standard soldierly appearance
* disobeying directives
* substandard performance
* disobeying a lawful order
* missed appointment and failure to follow instructions

4.  She accepted nonjudicial punishment (NJP) on 23 March 1990 for failure to go to her appointed place of duty and making a false official statement.

5.  The applicant accepted NJP on 7 May 1990 for failure to go to her appointed place of duty.

6.  The applicant underwent a Mental Status Evaluation on 9 July 1990.  She was cleared for retention in the Army or separation under the provisions of Army Regulation 635-200, chapter 13.


7.  On 14 August 1990, the applicant was notified she was being recommended for discharge for unsatisfactory performance.  She acknowledged receipt of the notification on 15 August 1990.  After consulting with counsel, she elected to submit a statement in her own behalf.  In her statement she asserted:

* she believed she was more of a help than a hindrance
* if she had a noncommissioned officer who was willing to actually work with her, the skills she had would be even better and much more noticed
* when she was assigned tasks to do in the dining facility, she made sure she always got them done well
* she was pregnant and yet she believed she could handle more

8.  The appropriate authority approved the recommendation for discharge on 30 August 1990.  The applicant was discharged on 11 September 1990, under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  She completed 1 year, 2 months, and 7 days of net active service this period.  She received a General Discharge Certificate.

9.  There is no evidence in the available record showing that she received counseling while she was in the Army because she was suicidal.  There is also no evidence showing at she was suffering from depression and bipolar disorder.

10.  A review of her records does not show she ever petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's        15-year statute of limitations.

11.  The applicant submits copies of letters from the Social Security Administration, dated 29 July and 14 October 2010, showing she is receiving monetary benefits from that agency and a Statement of Disability showing she was diagnosed with major depression and “THC abuse and Ax Bipolar.”

12.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment:

* the individual will not become a satisfactory Soldier
* retention will have an adverse impact on military discipline, good order and morale
* the service member will be a disruptive influence in the future
* the basis for separation will continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely

13.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, paragraph 3-7a states 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’s contentions have been noted.  Her supporting evidence has been considered.  

2.  There is no evidence in the available record showing she was suicidal or suffering from depression and bipolar disorder while she was in the Army.  The available records show she underwent a Mental Status Evaluation prior to her discharge and she was cleared for retention or separation.

3.  Her records show she was counseled on at least 13 occasions for unsatisfactory performance and in accordance with the applicable regulation, an individual will be separated for unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier.  An honorable or a general discharge is normally considered appropriate.

4.  The applicant received a general discharge based on her overall record of service.  She has not shown that the type of discharge she received is incorrect.

5.  In view of the foregoing, 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)                                         AR20110016556





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ABCMR Record of Proceedings (cont)                                         AR20110016556



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