IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120006571 


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
* removal of all documents relating to his discharge from his Army Military Human Resource Record (AMHRR), (formerly known as the Official Military Personnel File (OMPF))
* credit for all time served by deleting the current entry in item 29 (Dates of Time Lost During this Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

2.  The applicant states he should be exonerated of all charges relating to his under other than honorable conditions discharge due to his 2009 diagnosis of depression and bipolar disorder.  The Department of Veterans Affairs (VA) determined he suffered from these disorders since 1984.  This is what led to his drug and alcohol abuse in 1995.  He is currently in therapy at the VA Medical Center, Wilmington, DE.  His physician stated it is not unusual for those with bipolar disorder to have anxiety, problems sleeping, and to abuse drugs and alcohol.  The VA determined his service was considered honorable for the period 28 August 1980 to 29 March 1995.  He feels this raises doubts as to the validity of the charges of willful misconduct that resulted in his under other than honorable conditions discharge from the military.  His DD Form 214 should be corrected to show the characterization of his service as honorable.


3.  The applicant provides:

* his DD Form 214
* VA Rating Decision, dated 13 February 2012
* VA Appeals Management Center document, dated 19 November 2009
* Medical Record Progress Notes, dated 30 November 2009
* VA Character of Discharge document, dated 8 August 1997
* DD Form 149 (Application for Correction of Military or Naval Record), dated 24 May 1993, with attachment
* ten pages of a self-authored statement, dated 31 October 2003
* his spouse's statement, dated 18 November 2003
* DA Form 2-1 (Personnel Qualification Record), dated 9 December 1993
* one page of a medical record, dated 25 January 1984
* page one of a DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 30 March 1989
* six orders
* two certificates
* four memoranda
* page one of six DA Forms 2166-6 (Enlisted Evaluation Report)
* page one of two DA Forms 2166-7 (NCO (Noncommissioned Officer) Evaluation Report)
* page two of four DA Forms 2166-7
* DA Form 2166-7, for the rating period October 1994 through September 1995
* a ten-page letter with four pages of newspaper articles, undated, from the applicant to the Commander, U.S. Special Operations Command, Tampa, FL

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 complete military records are not available for review.  However, his reconstructed record contains sufficient documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available record shows he enlisted in the Regular Army on 29 August 1980 and he held military occupational specialties 31C (Single Channel Radio Operator) and 11B (Infantryman).  He served in various positions throughout the United States and overseas and attained the rank/grade of staff sergeant (SSG)/E-6 on 7 August 1987.

4.  On 16 December 1993, he was assigned to the 51st Signal Battalion, Fort Bragg, NC.  

5.  On 11 September 1995, he was reported absent without leave (AWOL) from his assigned unit.  On 13 September 1995, he was returned to military control.

6.  There is no evidence in his available record that shows he was ever diagnosed with a mental disorder while on active duty.  There is no evidence that shows he ever requested to be seen by a mental health provider and/or a psychiatrist for any issue/problem related to the abuse of drugs or alcohol.

7.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, the DD Form 214 he was issued shows he was discharged on 28 February 1996 in the rank/grade of private (PV1)/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.  He completed 15 years, 3 months, and 10 days of net active service with 2 days of time lost due to AWOL.

8.  The DD Form 214 he was issued at the time shows he was awarded the Meritorious Service Medal, Army Commendation Medal (3rd Award), Army Good Conduct Medal (5th Award), National Defense Service Medal, Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Marksman Marksmanship Qualification Badge with Rifle Bar, and the Air Assault Badge.

9.  The applicant provides a one-page medical treatment record wherein it shows a Soldier was seen by a Chief Warrant Officer Two (CW2) GV, at the Bamberg Health Clinic, Bamberg, Germany, on 28 January 1984, for a complaint of "loss of esteem" due to "loss of interest in his job" and "family problems."  The form noted the Soldier's mood was anxious, thought process clear, and thought content normal.  CW2 GV noted the Soldier had "situational depression - burned out syndrome" and gave him 48 hours quarters.  This form does not show the name of the Soldier that was treated, nor does it show whether CW2 GV was a medical assistant or physician's assistant.

10.  The applicant provides a VA Character of Discharge document, dated 8 August 1997, wherein it shows:

	a.  The applicant had stated, in pertinent part, he requested to be discharged instead of being tried by general court-martial.  He was facing court-martial charges for:

* two specifications each of borrowing money from subordinates and failing to repay the loans
* one specification of attempting to repay one of the loans with a bad check
* three specifications of using cocaine on 31 May, 21 August, and 24 August 1995
* one specification of attempting to bribe the unit clerk to falsify the results of the urine test on 21 August 1995
* one specification of being AWOL from 11 to 13 September 1995

	b.  In addition, the applicant provided the VA with a medical record, dated 2 November 1995, wherein it indicated he admitted to a cocaine and alcohol problem of 6 months to 1 year duration; and he stated he was spending $50.00 a week on cocaine and drinking up to a pint of alcohol every 2 days.

	c.  The VA determined his service from 28 August 1980 through 29 March 1995 was considered honorable, and his service from 30 March 1995 through 28 February 1996 was considered to have been terminated with a discharge under other than honorable conditions.

11.  The applicant provides VA medical progress notes, dated 30 November 2009, wherein it shows he was diagnosed with bipolar disorder on that date.

12.  On 23 February 2010, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The applicant's record was void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, on 1 December 2010, after carefully examining the applicant's available record of service, the ADRB determined that his discharge was both proper and equitable and denied relief.


13.  The applicant also provides a VA Rating Decision, dated 13 February 2012, wherein it shows the applicant was granted disability as follows:

* service-connection for bipolar disorder, 70%, effective 7 May 1997
* service-connection for chronic lumbosacral back strain, 10%, effective 21 November 2001
* service-connection for right knee strain, 10%, effective 6 March 1996
* service-connection for left knee strain, 10%, effective 6 March 1996
* service-connection for dequervains tenosynovitis of the left (claimed as left wrist (claimed a left wrist knot), 10%, effective 6 March 1996
* evaluation of hypertension, increased from 0% to 10%, effective 6 March 1996

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's available record is void of the specific facts and circumstances surrounding his discharge.  However, the applicant provided evidence that shows he admitted he had a cocaine and alcohol problem while serving on active duty and he was facing general court-martial charges for borrowing money from subordinates, failing to repay the loans, attempting to repay one of the loans with a bad check, using cocaine on three occasions, attempting to bribe a unit clerk, and for being AWOL.  All are offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

2.  The applicant also provided evidence that shows he stated he voluntarily requested discharge from the Army under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  Discharges under these provisions are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial.

3.  In the absence of evidence to the contrary, the applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service during his second enlistment.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  With respect to deleting the time lost from his DD Form 214, removing any documents relating to his discharge from his AMHRR, and changing his discharge to an honorable discharge, the available evidence shows the applicant was AWOL for 2 days and that his discharge was based on his voluntarily request for discharge in lieu of trial by court-martial for, among other serious charges, being AWOL and abusing cocaine.  The applicant does not dispute these facts; rather, it appears he believes the reasons he was not responsible for any of the misconduct that resulted in his discharge was because he was diagnosed with bipolar disorder by the VA almost 14 years after his discharge, receives disability from the VA, and because the VA determined some of his service was considered honorable for VA purposes.

6.  However, a disability decision rendered by another agency does not establish error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical condition of a Soldier at the time of their discharge from active duty.  The VA may award ratings because of a service-connected disability that affects the individual's civilian employability.  In addition, the VA does not have the authority or the responsibility for determining the characterization of a Soldier's active duty service.  The VA may make administrative determinations for VA purposes only.

7.  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)                                         AR20120006571



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ABCMR Record of Proceedings (cont)                                         AR20120006571



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