IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110017521 


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 her general discharge be upgraded to an honorable discharge.

2.  The applicant states that she was suffering from a disability that was unbeknownst to her at the time.  She later found out that she had a bipolar disorder and eventually post-traumatic stress disorder (PTSD) that impaired her judgment. Since she had a preexisting condition that wasn’t diagnosed at the time, the decision to give a general discharge was unjust.  She had no idea she was afflicted with a mood disorder and believes she would have been given leniency had they known.  

3.  She provides

* completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* unofficial Columbia College transcript
* letter from the Army Review Board Agency

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 record show she enlisted in the Regular Army (RA), in pay grade E-3, on 14 November 1989.  She completed training and was awarded military occupational specialty 94B (Food Service Specialist).  She served in Germany from 17 April 1990 through 16 April 1992.

3.  On 23 May 1990, she accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly and disrespectful in language toward two noncommissioned officers (NCO) and disobeying lawful orders for said NCOs.

4.  A Report of Mental Status Evaluation, dated 19 November 1990, shows her behavior was found to be normal.  Her level of alertness and orientation were found to be fully alert and fully oriented.  Her mood or affect was unremarkable and thinking process was clear.  Her thought was found to be normal and her memory was good.  The evaluating physician, a psychiatrist, remarked that there was no psychiatric disease or defect which warranted disposition through medical channels.  He stated that the applicant:

* had a disorder classified in the Diagnostic and Statistical Manual of Mental Disorders III-R as Alcohol Abuse
* had a personality style that could be described as Histrionic and Anti-Social 
* that condition and the problems presented by the applicant were not in his opinion amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military
* it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful
* the treatment choice for the applicant would be referral to the Community Counseling Center for treatment of chronic alcohol abuse

5.  On 3 January 1991, the applicant’s company commander notified the applicant that he was initiating action to discharge her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for a pattern of misconduct, with a general discharge.  The company commander stated the reasons for his proposed action were:

* incident dated 26 April 1990 for disobeying an order by a NCO
* statements on 9, 12, and 15 November 1990 reference job related incidents
* being very intoxicated and incorrigible at a private party
* being charged with assault being consummated by battery (2 counts) 
* a Sobriety Determination Report, dated 27 November 1990
* counseling statements, dated 17 and 20 November 1990
* Article 15 imposed on 30 November 1990 for assault (2 counts) and being drunk and disorderly
* being disrespectful to a NCO on 7 December 1990
* counseling reference incidents on 6 December 1990
* Article 15 imposed on 2 January 1991 for being disrespectful towards a NCO

6.  On 2 January 1991, she accepted NJP under Article 15, UCMJ, for willfully disobeying a lawful order for a NCO and being disrespectful in deportment toward said NCO.

7.  On 7 January 1991, after consulting with counsel, the applicant acknowledged receipt of the notification.  She also acknowledged she understood she could be issued a general discharge and the results of such a discharge.  She waived her rights and elected not to submit a statement in her own behalf.

8.  On 14 January 1991, the separation authority approved the applicant’s discharge from the Army under the provisions of Army Regulation 635-200, chapter 14, with a general discharge.

9.  She was discharged in pay grade E-1 on 25 January 1991, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct-Pattern of Misconduct.  She was credited with completing 1 year, 2 months, and 12 days of net active service and no time lost.

10.  There is no evidence she applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's receipt of two NJPs under Article 15 for assault and battery (2 counts) and being disrespectful towards two NCOs, verbal counselings for misconduct incidents, and a Sobriety Determination Report, lead to her company commander recommending her discharge for pattern of misconduct.  The separation authority approved the separation action on14 January 1991 and she was discharged accordingly.

2.  Her contentions have been noted; however, a mental status evaluation found she had a disorder classified as Alcohol Abuse.  The evaluating psychiatrist opined that she had a personality style that could be described as Histrionic and Anti-Social and that condition and the problems presented were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  He stated that it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The treatment choice for her would be referral to the Community Counseling Center for treatment of chronic alcohol abuse.

3.  She has provided no evidence or a convincing argument to show her discharge should be upgraded and her military record contains no evidence which would entitle her to an upgrade of his discharge.  There is an absence of evidence to support her contentions that any medical conditions prevented her satisfactory completion of service.  The evidence shows her misconduct diminished the quality of her service below that meriting a fully honorable discharge.

4.  The evidence of record also shows she was well aware of the reasons for her discharge at the time she was separated.  A discharge under other than honorable conditions was normally appropriate.  It appears her chain of command considered her overall record when she was issued a general discharge.  

5.  It appears her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize her rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

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)                                         AR20110017521





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ABCMR Record of Proceedings (cont)                                         AR20110017521



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