BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20130013856 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states he has a bi-polar disorder that was not discovered prior to his induction or his discharge.  He was unaware of this disorder.  He has congestive heart failure.  He wants help with his medication.  He hears voices and has been hospitalized for suicidal tendencies. 

3.  The applicant provides a list of his medications.

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.  He enlisted in the Regular Army on 22 June 1977 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  On 5 October 1977, he was assigned to Service Battery, 3rd Battalion, 34th Field Artillery in Germany.

4.  His DA Form 2-1 (Personnel Qualification Record) shows two periods of absence without leave (AWOL):

* 6 -13 March 1978
* 17 March - 15 April 1978

5.  There is no disposition for either of the above periods of AWOL in his Military Personnel Records Jacket (MPRJ).

6.  There was no charge sheet in his MPRJ and his separation processing package was not available for review.

7.  On 27 June 1978, the applicant was discharged under the provisions of 
chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service.  He completed 10 months and 29 days of active service that was characterized as under other than honorable conditions.  He had 98 days of time lost.

8.  On 1 February 1982, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for an upgrade of his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  Title 38, U.S. Code, permits the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in his available records showing he was diagnosed with a bi-polar disorder or that it interfered with his performance of the duties of his rank and MOS.

2.  Although his separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  He would have been required to consult with defense counsel and to have voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.


3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and the type of discharge and the reason for separation were appropriate.

4.  He enlisted for 4 years and only completed 10 months and 29 days of his commitment.  He had 98 days of time lost.  Therefore, his limited service is determined to be unsatisfactory.

5.  In view of the above, there is an insufficient basis to change the character of his service to honorable or general.

6.  The applicant's expressed need to obtain health care is noted.  However, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

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)                                         AR20130013856



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ABCMR Record of Proceedings (cont)                                         AR20130013856



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