IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110023621 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  He states he was under medical care for a depressive episode at the time the alleged incident occurred.  He adds he had never been a disciplinary problem before the episode as evidenced by his award of the Army Good Conduct Medal and his honorable discharge from the U.S. Navy (USN).  He maintains he was mistreated by his command and given the maximum punishment for a single false accusation.

3.  He provides:

* a DA Form 3888-3 (Medical Record - Nursing Discharge Summary), dated 17 November 1995
* DA Form 5571 (Master Problem List)

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.  With 4 years of prior USN enlisted service, the applicant enlisted in the Regular Army.  He completed training and he was awarded military occupational specialty 16T (Patriot missile crewmember)

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 24 October 1995 for failing to make two formations on 18 October 1995
* 21 November 1995 for losing his bayonet on 2 November 1995
* 19 December 1995 for leaving his post as a sentinel before being relieved and leaving his assigned M-16 rifle and bayonet in a wooded area on
7 November 1995

4.  On 17 November 1995, he underwent a mental status evaluation.  A complete copy of the evaluation is not contained in his military record.  The available portion shows the psychiatrist checked the block indicating the applicant had the mental capacity to understand and participate in the proceedings and he was mentally responsible.  He was diagnosed with a personality disorder NOS (not otherwise specified) and major depressive episode.  The psychiatrist stated:

	a.  This condition was a deeply ingrained, maladapted pattern of behavior of long duration.  The severity of this condition resulted in significant impairment in the ability of the applicant to function in a military environment

	b.  This condition and the problems present by the applicant were not in the opinion of the examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.

5.  On 18 December 1995, the battalion commander approved a bar to reenlistment on the applicant.

6.  On an unspecified date, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph

14-12b, by reason of a pattern of misconduct.  The reasons for his proposed action was the applicant left his post without authority while posted as a guard during a field training exercise (FTX), he left his weapon while on an FTX, and he committed the offense of failing to repair on several occasions.  The commander recommended he receive an under other than honorable conditions discharge.

7.  On an unspecified date, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, the applicant waived his right to consideration of his case by an administrative separation board and to consult with and be represented by counsel.  He elected not to submit statements in his own behalf.

8.  He acknowledged he understood he may encounter substantial prejudice in civilian life if a discharge less than honorable was issued to him.  He further acknowledged he understood that as a result of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  He also acknowledged he understood if he received a discharge which was less than fully honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also acknowledged he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

10.  The separation authority's approval of the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14 is not contained in his military personnel records.

11.  However, his DD Form 214 shows he was discharged on 11 May 1996 under the provisions of Army Regulation 635-200, chapter 14-12c(2), by reason of misconduct, with an under other than honorable conditions discharge.  He completed 1 year, 2 months, and 10 days of net active service this period for a total of 5 years, 2 months, and 10 days of total active service.

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He provided medical documentation that indicated he had a major depressive episode in November 1995 and he was treated with Prozac.

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

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	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's argument that his mental state led to his indiscipline was considered.  The evidence of record shows at the time of his discharge a mental evaluation was conducted that diagnosed him with a personality disorder and major depressive episode.  However, the psychiatrist determined he was mentally responsible and he had the mental capacity to understand and participate in the separation proceedings.

2.  Further, the evidence shows he waived his rights to an administrative separation board and elected not to submit statements in his own behalf.  Therefore, his contention, 16 years later, that his mental state, led to his indiscipline is not sufficient as a basis to upgrade his discharge.

3.  The evidence also shows he committed all of his NJP offenses prior to his depressive episode.  Therefore, his argument that he had never been a disciplinary problem before his depressive episode is not supported by the evidence of record.

4.  The available evidence also confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  Additionally, his record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110023621



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ABCMR Record of Proceedings (cont)                                         AR20110023621



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