BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018647 


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 his character of service be upgraded from under other than honorable conditions to a general under honorable conditions or honorable or that be given a medical discharge.

2.  The applicant states he was mentally ill at the time of his discharge, and suffering from schizophrenia.  He was hospitalized for mental illness at Fort Riley, KS; Wiesbaden, Germany; and Fort Sam Houston, TX.  He is still receiving treatments for his mental illness.  He wanted to make the Army a career.  He was suffering from a mental illness and should have been evaluated at his last duty station.

3.  The applicant provides a self-authored statement and a copy of his Honorable Discharge Certificate.

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.  After having had prior enlisted service and receiving and honorable discharge, the applicant enlisted in the Regular Army on 6 June 1978 and held the military occupational specialty 76V (Material Storage and Handling Specialist).  The highest rank/grade he attained was specialist four/E-4.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was in a patient status in Germany from 23 October 1980 to 12 November 1980 and at Fort Sam Houston, TX from 13 November 1980 to 16 December 1980.  He was assigned to Fort Ord, CA from 7 January 1981 to 26 May 1981; and to Fort Polk, LA from 
1 July 1981 to 1 June 1982.

4.  His records show he accepted Nonjudicial Punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions from 17 March 1982 to 7 April 1982 for:

* Failure to obey a lawful order
* Failure to report
* Violating restriction to the company area
* Disrespect towards a superior noncommissioned officer (NCO)

5.  His records contain 11 statements from Soldiers in his unit.  These statements collectively describe an incident which occurred on or about 4 May 1982 in which:

	a.  the applicant failed to report to the company morning formation.  When he did report he was very disrespectful to sergeant first class (SFC) CC.  SFC CC gave him a lawful order to go outside and cut the grass with two other Soldiers.  The applicant then addressed SFC CC in a loud voice and stated "I'm going to get rid of you.  Don't say anything to me.  I don't want to hear anything you have to say.  You're not an NCO";

	b.  first sergeant (1SG) FB, upon hearing this altercation, gave the applicant a lawful order to sit down.  The applicant told 1SG FB, "in a loud, forceful, and disrespectful voice," that he did not have to do what the 1SG told him and refused to sit down.  1SG FB then gave him the order to be at ease and sit down; however, he again refused to obey;

	c.  next, captain (CPT) RUK, the company commander, gave the applicant a direct order to have a seat outside his office and told the applicant he would get him an appointment to see the battalion commander (BN CDR).  The applicant did not obey this order;

	d.  CPT RUK walked back to his office to phone the BN CDR and relay his intent to prefer court-martial charges against the applicant.  While CPT RUK was on the phone the applicant entered his office and told him that he was going to see the BN CDR and if the BN CDR did not do anything he would go see the assistant division commander if he had to.  At this point CPT RUK told the applicant to go sit down and he (CPT RUK) would call the BN CDR to see if he could see the applicant at that time;

	e.  the applicant became belligerent and told CPT RUK that he would see the BN CDR whether or not CPT RUK gave him permission and then walked out of the office.  CPT RUK told him to sit down and wait until he could locate the BN CDR.  The applicant reentered CPT RUK's office and began pointing at him and raising his voice while stating that he would do whatever he wanted.  CPT RUK again commanded him to sit in the orderly room.  The applicant left the orderly room and started walking to the battalion headquarters without authority; and 

	f.  CPT RUK told 1SG FB to physically apprehend the applicant and bring him back to the orderly room.  When 1SG FB returned to the orderly room with the applicant he was placed in the back of the room with guards posted around him so that he could be watched to make sure he did not leave the area or try harming himself or others.

6.  His records contain a DD Form 458 (Charge Sheet), dated 10 May 1982.  This form shows the applicant was charged with the following offenses:

* Charge 1

* Two specifications of failure to report to his place of duty at the appointed time

* Charge 2

* Two specifications of behaving disrespectfully towards CPT RUK, by speaking to him in a loud manner and pointing and shaking his finger at him

* Charge 3

* One specification of willfully disobeying a lawful command from CPT RUK to stop kicking the wall, speaker's lectern and to be at ease.
* Charge 4

* Two specifications of disobeying a lawful order form SFC CC by refusing to cut the grass and to sit down and be at ease
* One specification of being disrespectful in language towards SFC CC by saying "I'm going to get rid of you.  Don't say anything to me.  I don't want to hear anything you have to say.  You're not an NCO."

7.  On 19 May 1982, he 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 an other than honorable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In this request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  His medical records are not available for review in this case.  Additionally, his available records do not indicate he suffered an injury or an illness that would have warranted his referral to the Physical Disability Evaluation System (PDES).

10.  On 25 May 1982, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge.  Accordingly, he was discharged on 1 June 1982.

11.  his DD Form 214 confirms he was discharged on 1 June 1982 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under other than honorable conditions characterization of service.

12.  On 30 November 1982, the Army Discharge Review Board (ADRB) considered his request to upgrade his discharge.  The ADRB determined he was properly and equitably discharged, and denied his request.

13.  He provided a copy of the Honorable Discharge Certificate he was issued for his first enlistment and a self-authored statement as evidence in this case.  The self-authored statement essentially says that he was suffering from a mental illness at the time of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).

18.  Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

19.  Army Regulation 635-40 states a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  His record shows he received NJP under the provisions of Article 15 of the UCMJ on three occasions.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general under honorable conditions or a honorable discharge.

3.  There is no evidence in the available records and he failed to submit any evidence that shows he suffered from a medical condition that would have warranted entry into PDES.

4.  Additionally, he was charged with an offense for which he could have been dismissed or given a punitive discharge.  There is no record that the convening authority dismissed the charges against him.  As a result he was not eligible for referral to PEDS for disability processing.  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)                                         AR20110018647





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ABCMR Record of Proceedings (cont)                                         AR20110018647



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