IN THE CASE OF:	

		BOARD DATE:	    2 January 2014

		DOCKET NUMBER:  AR20130007113 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  He states his discharge was due to behavior most likely related to mental illness as evidenced by his diagnosis of bipolar disorder.  He believes he was wrongfully discharged, as his diagnosis was unknown at the time.  He has recently been diagnosed with lifelong mental health issues that explain the conduct that led to his discharge from the Army.  His condition exacerbated his behavior and led to increased alcohol and drug consumption as a coping mechanism.

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* memorandum, subject:  [Applicant], dated 9 February 2013

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.  On 19 March 1968, the applicant enlisted in the Regular Army at age 17 with parental consent.  His record does not show that he completed initial entry training.

3.  Special Court-Martial Order Number 80 (Corrected Copy), issued by Headquarters, Third Basic Combat Training Command, U.S. Army Training Center Infantry, Fort Ord, CA, dated 27 May 1968, shows he was found guilty of being absent without leave (AWOL) from 30 March to 28 April 1968.

4.  Special Court-Martial Order Number 73, issued by Headquarters, Troop Command, U.S. Army Training Center, Fort Ord, CA, dated 16 January 1969, shows he was convicted of being AWOL from 12 October to 28 November 1968.  

5.  On 26 June 1969, before the Superior Court of the State of California for the County of Riverside, he pleaded guilty to first degree robbery and admitted to an allegation of being armed with a deadly weapon.  On 17 July 1969, the Court requested the Youth Authority of California accept the applicant for placement and determined he would remain in custody pending a reply.

6.  On 28 July 1969, the Assistant Adjutant General, Headquarters, U.S. Army Training Center, Infantry and Fort Ord, CA, notified the applicant that he was being considered for discharge because of his conviction by a civil court.  He was notified that:

* there was a probability he would be issued a UOTHC discharge and that he could expect to encounter substantial prejudice in civilian life as a result of such a discharge
* he had the right to –

*  request appointment of military counsel or to employ civilian counsel at his own expense to represent him in his absence and present his case before a board of officers
* submit a statement in his own behalf
* waive his rights

7.  On 29 July 1969, he completed a Statement of Appeal of Civil Conviction and a Statement of Counseling.  The statements show he:
* had not appealed and did not intend to appeal his civil conviction for first degree armed robbery
* waived consideration of his case by a board of officers and personal appearance before such a board
* elected not to submit statements in his own behalf
* waived representation by counsel
* acknowledged that, as a result of a UOTHC discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws and could expect to encounter substantial prejudice in civilian life

8.  On 20 August 1969, the separation authority approved his discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) and directed he receive an Undesirable Discharge Certificate.  The separation authority noted the applicant was confined at the Riverside County Jail, Riverside, CA.  His DD Form 214 shows he was discharged in accordance with the separation authority's decision on 3 September 1969, and his service was characterized as UOTHC.  He had 447 days of time lost due to AWOL and incarceration.

9.  His service medical records are not available for review.  His Army Military Human Resource Record (formerly called the Official Military Personnel File) is void of documentation indicating he was diagnosed with a mental illness during his military service.

10.  He provides a memorandum, subject:  [Applicant], from Dr. T_____ W. B____, MD, JD, an Assistant Professor with the Wake Forest University School of Medicine.  In the memorandum, Dr. B____ states the applicant is being followed in a project conducted by the Psychiatry Department for treatment of bipolar disorder.  Dr. B____ states the condition is disabling and, in the case of the applicant, has been lifelong.  Dr. B____ states it is extremely likely that the condition explains the conduct that led to his UOTHC discharge.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  The regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.  The regulation provided that individuals who were physically under military control (emphasis added) would be referred for medical evaluation, including examination by a psychiatrist.

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

   a.  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.

     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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.  

2.  Because he was in civil confinement, there was no requirement that he undergo a medical or psychiatric examination during his discharge processing.  While an examination may have resulted in a diagnosis of mental illness, he deprived himself of that opportunity through his criminal conduct.  A diagnosis of bipolar disorder given decades later is an insufficient basis for changing a properly-issued discharge.

3.  He was twice convicted of being AWOL by special court-martial and he was convicted of first degree armed robbery by a civil court.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or honorable 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)                                         AR20130007113





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ABCMR Record of Proceedings (cont)                                         AR20130007113



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