IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110017959 


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 his discharge under other than honorable conditions (UOTHC).

2.  The applicant states:

* he was hospitalized for depression while assigned to recruiting duty
* the records evidencing his depression are missing
* he was refused follow-up treatment for his mental condition
* the recruiting commander and sergeant major told him he did not want [his depression] in his record and stated, "we need to keep this quiet"
* had he been able to receive treatment for his depression upon his return to recruiting duty, none of these things would have occurred
* he began to self medicate causing him to drink
* his drinking led to alcoholism which led to his discipline problems
* he was getting drunk and driving drunk
* he was stopped on more than one occasion for driving while intoxicated

3.  The applicant provides:

* self-authored statement
* witness statement
* Criminal Records Check with 28 attachments


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 shows he enlisted in the Regular Army on 24 October 1978 after having prior military service.  He held military occupational specialties (MOS's) 63B (Light Weight Vehicle and Power Generator Mechanic) and 00E (Recruiter).

3.  His record shows he earned the following awards:

* National Defense Service Medal
* Army Good Conduct Medal (2nd Award)
* Driver and Mechanic Badge
* U.S. Army Recruiter Badge with two gold stars

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ):

* on 23 October 1979, for making a false statement with the intent to deceive
* on 2 May 1980, for being absent without leave (AWOL) from 1-7 April 1980

5.  The applicant's official military personnel file (OMPF) includes a U.S. Army Medical Department Activity letter, dated 22 February 1980.  It shows:

	a.  while working as a recruiter and after attempting to ingest some pills, the applicant was admitted to Womack Army Hospital Psychiatric Ward on 18 February 1980 due to depression;

	b.  due to financial problems, the applicant returned his family to Fort Bragg, North Carolina; however, the geographical separation caused him severe emotional strain;

	c.  the applicant was diagnosed with severe situational adjustment reaction secondary to financial problems and geographical separation from the family;

	d.  his prognosis appeared to be good if he were reunited with his family; and

	e.  a recommendation was made to relocate the applicant to another recruiting command in close proximity to a military installation or, if this could not be effected, a transfer out of recruiting.

6.  On 28 February 1980, the applicant initiated a request for reassignment from recruiting duty due to financial hardship.

7.  His OMPF includes a District of Maryland record of arrest, dated 7 April 1980, which shows the applicant was arrested on 29 March 1980 and charged with possession of a concealed weapon, driving while under the influence, fleeing and eluding a police officer, and reckless driving.

8.  On 2 June 1980, the applicant's request for reassignment was approved.  Reclassification from primary MOS 00E to MOS 63H was also directed.

9.  His OMPF includes two DA Forms 4187 (Personnel Action), dated 19 and 23 June 1980, which show he was apprehended by civilian authorities and taken to the East Cleveland City Jail, East Cleveland, Ohio, pending bond posting on charges of trafficking cocaine.  He remained in civilian custody during the period 18-21 June 1980.

10.  On 6 August 1980, the applicant's unit commander notified him that action was being initiated to separate him under the provisions of Army Regulation 
635-200 (Personnel Separations), paragraph 14-33b(1), for frequent incidents of a discreditable nature with civil or military authorities.

11.  On 29 August 1980, the applicant was advised of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of a waiver of those rights.  The applicant completed his election of rights by requesting consideration of his case and appearance before a board of officers and representation by counsel.  He elected not to submit a statement on his own behalf.

12.  On 10 December 1980, the Cuyahoga County, Ohio, Court of Common pleas, found the applicant guilty of two indictments of trafficking in drugs.  On 5 March 1981, he was sentenced to 3-10 years (time suspended) on each count and fined $700.00.

13.  On 24 April 1981, the applicant was notified to appear before a board of officers to determine if he should be discharged because of misconduct before his expiration of term of service on 8 May 1981.

14.  On 4 May 1981, the applicant's counsel submitted a letter to his commander that shows the applicant was detained in Crown Point, Indiana, pending an investigation of an alleged traffic violation.  As a result, counsel made a request for an indefinite continuance of the elimination hearing.

15.  On 17 June 1981, the board of officers convened to determine if the applicant should be discharged from military service prior to his expiration of normal term of service.  After considering all of the evidence before it, the board recommended the applicant's discharge from the Army because of misconduct with a UOTHC discharge.

16.  The separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge by reason of misconduct under the provisions of Army Regulation 635-200, chapter 14, with a UOTHC character of service.  On 21 July 1981, the applicant was discharged accordingly.

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge confirms he was separated by reason of misconduct (frequent incidents of a discreditable nature with civil or military authorities) under the provisions of Army Regulation 635-200.  It also shows he completed a total of 8 years, 10 months, and 18 days of creditable active military service and he held the rank of private/E-1 at the time of his discharge.

18.  The applicant's OMPF contains no evidence to show he suffered from a disabling condition at any time during his active duty service that would have warranted his separation processing through medical channels.

19.  The applicant provides a witness statement from his brother who states he visited his brother at Womack Army Hospital while he was being treated for depression and being suicidal.

20.  On 6 March 1992 after carefully reviewing the applicant's military record and his issues, the Army Discharge Review Board determined his discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions.

	b.  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.

	c.  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 his discharge UOTHC should be upgraded because he never received follow-up treatment for his depression.  There is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant's administrative separation was processed in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reveals an extensive history of misconduct as evidenced by his NJP and civil arrests.  It further shows he failed to respond to disciplinary action and counseling.

4.  Finally, the evidence of record confirms the applicant's misconduct continued to escalate even after he was removed from recruiting duty at the recommendation of his psychiatrist.

5.  Given his extensive disciplinary history, it is clear his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time of his discharge and it does not support an upgrade now.

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 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)                                         AR20110017959



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ABCMR Record of Proceedings (cont)                                         AR20110017959



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