IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110024903 


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 bad conduct discharge (BCD) to a general discharge or change his character of service to uncharacterized.

2.  He states:

	a.  he is a paranoid schizophrenic and this condition was latent until disappointing experiences and stress triggered abnormal behavior during the second year of his enlistment.

	b.  his condition was not diagnosed by the Army and he was given a BCD.

3.  He provides:

* an addendum to his application
* diagnosis and comments from the Northside Mental Health Center
* Paranoid Schizophrenia Risk Factors from the Mayo Clinic website
* Quotes from the Cengage Learning, Mental Illness, Introduction Greenhaven Press 2009
* Quote from the Scarecran Press, A Premier on Mental Disorders, 2001
* Quotes from "The Everything Health Guide to Schizophrenia," Copyright 2009
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Four DA Forms 4187 (Personnel Action)


* DD Form 4 (Enlistment/Reenlistment Document)
* DD Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ))
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Special Court-Martial Order Number 27, issued by Headquarters, U.S, Army Air Defense Center, Fort Bliss, TX, dated 20 June 1986
* Special Court-Martial Order Number 56, issued by headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 13 April 1987
* Medical documents
* Affidavit from his father-in-law

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 enlisted in the Regular Army on 11 April 1985 for a period of
4 years.  His DA Form 2-1 indicates he was awarded military occupational specialty (MOS) 55D (Explosive Ordnance Disposal Specialist) on 26 September 1985.  He was later reclassified into MOS 94B (Food Service Specialist).

3.  A DA Form 4187, dated 23 July 1985, indicates he was advanced to private (PV2)/E-2, effective 1 August 1985.

4.  On 20 March 1986, he accepted nonjudicial punishment (NJP) under
Article 15, UCMJ for breaking restriction.

5.  On 8 May 1986, he was convicted pursuant to his guilty pleas by a special court-martial of:

* failing to report for duty in the kitchen of the troop mess hall on 5 February 1986


* being disrespectful in language toward a noncommissioned officer (NCO) in the execution of his office on 5 February 1986
* being disrespectful in language toward an NCO in the execution of his office on 10 February 1986
* assaulting a military policeman in the execution of his duties on
11 February 1986

6.  He was sentenced to a BCD, confinement for 90 days, and forfeiture of $200.00 pay per month for 3 months.

7.  On 20 June 1986, the court-martial convening authority approved the sentence and except for that part of the sentence extending to a BCD, ordered it executed.  The applicant was credited with 29 days of confinement against the sentence to confinement.

8.  On 20 October 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  On 13 April 1987, the BCD was ordered executed.

10.  He was discharged on 18 May 1987 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  He completed 1 year, 11 months, and 26 days of creditable active service with 43 days of time lost.

11.  His service record is void of evidence that indicates he was diagnosed with paranoid schizophrenia or that he underwent a psychiatric evaluation while on active duty.

12.  He provided an addendum to his application attesting:

	a.  he was originally awarded MOS 55D as an Explosive Ordnance Disposal Specialist.  This MOS was later removed, but he was never given a reason.  He could have possibly been reclassified because of the psychiatric evaluation he underwent at Redstone Arsenal, AL.  If so, he should have been advised, treated, and discharged under honorable conditions.

	b.  he was diagnosed with schizophrenia in 1999 and now he is on a successful medication program.  Since his diagnosis and medication along with counseling, he has turned his life around.  He has held employment, rented an apartment, reunited with his family, stopped drinking, and gotten married.

	c.  he has been employed by McDonald Corporation for 5 1/2 years.  Following his discharge, he drifted from job to job, lived on the streets, and he had no friends.

	d.  his mental condition was not discovered by the service medical staff.  If it had been, perhaps he could have received assistance and served his term of enlistment or been discharged under conditions other than a BCD.

	e.  his condition was triggered by several disappointing and stressful events which occurred during his senior year in high school and in the military.

	f.  The removal of the BCD will allow for the possibility of further improvement in life, employment, and self esteem.

13.  He provided the following documents:

	a.  Northside Treatment Mental Health Center, Treatment Plan, diagnosed him with paranoid schizophrenia; depressive disorder, not otherwise specified; rule out schizoaffective disorder, polysubstance dependence in sustained full remission.  The listed problems 1 through 5 indicate he:

		(1)  has history of significant mental health symptoms, including auditory and visual hallucinations, suicidal ideation, severe depression, paranoia and anxiety.

		(2)  has history of gastroesophageal reflux disease.

		(3)  has an extensive history of substance abuse, has driven under the influence, and was known to become aggressive and engage in physical altercations when intoxicated.  He was also dishonorably discharged from the military due to his heavy alcohol abuse.  He has abused Xanax, crack, powder cocaine, marijuana, Quaaludes, speed, and over the counter Ephedra.

		(4)  has a history of substance abuse in the past which caused him to spend his funds and lose housing placement in the community.

		(5)  has difficulty with taking criticism from upper management and has been linked with Supported Employment for assistance with his coping skills for work situations.

	b.  Information from the Mayo Clinic website defining paranoid schizophrenia and identifying risk factors, symptoms, and causes of this mental condition.


	c.  he cites several quotes regarding schizophrenia from various documents.

	d.  an affidavit from his father-in-law attesting to his character and current behavior.

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

	a.  Paragraph 3-11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  Paragraph 3-9 provides that separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty, and demonstrated that they could not or would not adapt socially or emotionally to military life.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  Although the applicant contends that his misconduct was due to paranoid schizophrenia, his service record is void of evidence indicating he was diagnosed with this mental condition prior to his discharge or that he raised his mental condition as a possible defense at the time.


3.  The evidence of record indicates he completed initial entry training and he was awarded MOS 55D and later reclassified into MOS 94B.  His service record is void of evidence that indicates the reason for his reclassification.  His service record also does not include evidence that indicates he underwent a psychiatric evaluation at Redstone Arsenal.

4.  The applicant’s progress while on medication program and post-service achievements are acknowledged.  However, his good post-service achievements alone are not a basis for upgrading a discharge.

5.  Based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his request for upgrading his BCD to a general discharge.

6.  He served 1 year, 11 months, and 26 days of creditable active service which exceeds the 180 days of service for an uncharacterized characterization of service.  Therefore, there is no basis for granting this portion of his request.

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)                                         AR20110024903



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ABCMR Record of Proceedings (cont)                                         AR20110024903



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