IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008724 


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 discharge under other than honorable conditions (UOTHC) due to his medical condition.

2.  The applicant states his records indicate he received a psychiatric evaluation prior to and during his military service.  However, he says that is incorrect.  He has suffered his entire life from being paranoid delusional type II.  He is legally mentally ill.  By failing to properly examine him, the military allowed him to serve in a state of complete delusion.  The description of his disciplinary history is indicative of his mental illness.  Therefore, his service record should accurately reflect this fact.  He contends that his mental illness was the proximate cause of his bizarre behavior while serving in the military.  He states it is an established fact that he suffered from a mental illness and is in need of treatment for his condition.  The military's failure to diagnose his condition prior to his service is relevant when considered in light of his actions while serving in uniform.  Clearly the record demonstrates his behavior as that of a paranoid delusional because his actions were not those of a normal person of average intelligence.  In a second application, he argues that his mental condition resulted from a disease that occurred at birth and continued to increase in severity.  The military had plenty of warnings, but rather than have him examined by a psychiatrist or clinical psychologist, he was simply punished for his mental incompetence.

3.  The applicant provides no additional evidence.



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 24 August 1976, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 16P (Chaparral Crewman).

3.  On 14 December 1976, the applicant was assigned for duty at Fort Hood, TX.

4.  The applicant accepted nonjudicial punishment (NJP) on the following four occasions:

	a.  on 18 April 1977, for failing to go to his appointed place of duty, willfully disobeying of a lawful order to perform maintenance on his weapon, being absent without leave (AWOL) for 1 day, avoiding his crewman duties, being AWOL for about 10 days, and willfully disobeying an order to report to his commanding officer;

	b.  on 8 August 1977, for leaving his appointed place of duty without authority;

	c.  on 17 August 1977, for failing to sign in every hour while on restriction; and

	d.  on 25 August 1977, for failing to sign in every hour while on restriction.

5.  Headquarters, Division Artillery, 2d Armored Division, Fort Hood, TX, Special Court-Martial Order Number 25, dated 23 August 1977, shows the applicant was convicted of the following charges:

* violation of Article 86, Uniform Code of Military Justice (UCMJ), for being AWOL (two specifications only)
* violation of Article 92, UCMJ, for disobeying a lawful order
* violation of Article 134, UCMJ, for falsely altering an individual sick slip

6.  On 23 August 1977, the commander initiated action to recommend the applicant's discharge from the service due to his frequent incidents of a discreditable nature.  He cited the applicant's four NJP and special court-martial as a basis for this action.

7.  On 31 August 1977, the applicant consulted with counsel.  He elected to waive counsel and not to make a statement in his own behalf.

8.  On 31 August 1977, the commander recommended the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for misconduct.  The commander further requested a waiver of the requirements for further counseling and rehabilitation.

9.  On 8 September 1977, the appropriate authority approved the recommendation and directed the issuance of a UOTHC Discharge Certificate.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  The applicant's service medical records are not available for review.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

13.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 13 in effect at the time provided for the separation of individuals for unfitness whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unfitness was warranted, a UOTHC Discharge Certificate was normally issued.

	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 contends that his UOTHC discharge should be upgraded due to his medical condition.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

4.  The applicant contends that his misconduct was the result of his mental illness at the time.  Unfortunately, he has not provided any documentary evidence to support his contention.  Furthermore, his service medical records are not available for review.  His personnel records do not contain any evidence showing he suffered any mental or physical defect that might have been the cause of his misconduct.  In addition, he could have raised the issue of his mental incompetency during his court-martial.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20130008724



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ABCMR Record of Proceedings (cont)                                         AR20130008724



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