IN THE CASE OF:	 

		BOARD DATE:	 15 May 2012 

		DOCKET NUMBER:  AR20110022414 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states that he became sick in 1978.  His psychiatrist says that he is a Bipolar Schizophrenic.  He was not able to explain his sickness when he requested to be discharged.  In 2008, he began taking medication that is helping him.

3.  The applicant provides a Medication Print Pass.

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 records show he enlisted in the Regular Army, in pay grade E-1, on 9 August 1976, for 4 years.  He completed training and was awarded military occupational specialty 51N (Water Treatment Plant System Operator).  He was advanced to pay grade E-2 on 8 February 1977.

3.  On 10 June 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on 6 June 1977.

4.  On 15 July 1977, a DD Form 458 (Charge Sheet) was prepared by the Commander, 23rd Engineer Company (Combat Heavy).  The applicant was charged with one specification each of:

* intent to commit rape and sodomy and assault with his hand upon a female on 20 June 1977
* commit sodomy by force and without consent of said female on 20 June 1977

5.  On 18 July 1977, court-martial charges were preferred against the applicant.

6.  He again accepted NJP under Article 15, UCMJ, for the following:

* 1 September 1977 - for assault on or about 20 June 1977
* November 1977 - for willfully disobeying a lawful orders from his superior non-commissioned officer (NCO) on 16 November 1977 and being disrespectful in language towards an NCO on 17 November 1977
* 8 March 1978 - failing to go his appointed place of duty on 22 February 1978

7.  He was reduced to pay grade E-1 on 1 September 1977.

8.  In a statement, dated 18 April 1978, a Behavioral Science Technician, U.S. Army Health Clinic, Community Health Activity, Fort Richardson, AL, stated:

	a.  The applicant, a 21 year old enlisted man, was seen at the Community Mental Health Activity on 13 april 1978 at the request of his command.

	b.  The applicant was angry about the way people were treating him.  The applicant felt that his anger would lead to an incident that would bring his 6th Article 15.  The applicant was also losing sleep because he was threatened that something would happen to him at night.  According to the applicant, his fears and mistrust are worse when he smoked marijuana.  Some of the applicant's behavior sounds as if it was drug-induced, but not necessarily by marijuana.
	c.  The applicant was sane, meaning he could distinguish right from wrong and adhere to the right.  The applicant did however have a history of impulsive acting-out behavior which continued to the present.

	d.  Although the applicant said he could not afford another Article 15, he continued to use marijuana and stood ready to fight those who treated him differently.  In other words, the applicant was very willing to risk punitive action for things that meant more to him than his Army career.  They did not see an end to that pattern.  They agreed that the administrative discharge being considered by the command was appropriate.

9.  He again accepted NJP under Article 15, UCMJ, for the following:

* 5 April 1978 - for disobeying a lawful order 23 March 1978
* 12 May 1978 - for being absent without leave (AWOL) from 8 to 9 May 1978
* 22 May 1978 - for disobeying a lawful order on 28 April 1978
* 23 May 1978 - for failing to go to his appointed place of duty on 2 and 5 May 1978

10.  On 13 June 1978, he was released from confinement after all charges were dropped in lieu of approval of discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 14.

11.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged from active duty in pay grade E-1 on 14 June 1978 under the provisions of Army Regulation 635-200, paragraph 14-33, for Misconduct.  His service was characterized as UOTHC.  He was credited with completing 1 year, 10 months, and 6 days of active service and 2 days of time lost.

12.  On 24 April 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200, paragraph 14-33b, in effect at the time, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  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 UOTHC discharge was normally considered appropriate.
14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  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 clearly inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with intent to commit rape, sodomy, and assault upon a female in July 1977.  He was punished under Article 15 on eight occasions for misconduct between June 1977 and May 1978.  It appears his misconduct diminished the quality of his service to warrant a higher characterization of service than that which he was issued.

2.  The applicant contends his discharge should be upgraded because he is now a Bipolar Schizophrenic.  The evidence of record shows he was referred to the Community Mental Health Activity by his command in April 1978.  A Behavior Science Technician stated that the applicant was angry about the way people were treating him.  He found the applicant to be sane and able to distinguish right from wrong and adhere to the rights.  He stated the mental health activity did not see an end to the pattern of the applicant's willingness to risk punitive action for things that meant more to him than his own Army career and agree an administrative discharge was appropriate.

3.  His record is void of the facts and circumstances which led to his discharge.  However, the evidence shows he was discharged on 14 June 1978 under the provisions of Army Regulation 635-200, paragraph 14-33, for misconduct.  

4.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would support upgrading his discharge based on his current medical diagnosis.



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)                                         AR20110022414





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ABCMR Record of Proceedings (cont)                                         AR20110022414



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