BOARD DATE:	 22 April 2014 

		DOCKET NUMBER:  AR20130015054 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  He states he was unaware of his mental health problems during his military service which contributed to his performance problems.  He opines that these problems should have been recognized by his superior so that they could have assisted him in obtaining professional help.  He states that since he has been discharged from the military, he has been diagnosed with mental issues and has received treatment.

3.  He provides a self-authored statement, DD Form 214 (Certificate of Release or Discharge from Active Duty), and hospital clinical notes.  

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 2 May 1979. 

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 21 February 1980 for being derelict in the performance of his duties on
2 February 1980
* 23 April 1980 for failing to obey a lawful order on 14 April 1980
* 30 April 1981 for failing to obey a lawful order on 21 April 1981
* 16 June 1981 for failing to go to his appointed place of duty on 31 May 1981

4.  The charge sheet or the complete discharge packet pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial is not contained in his available military records.  However, his records contain a 1st, 2nd, and 3d Endorsement to his request for discharge for the good of the service that show his chain of command recommended approval of his request on 11 August 1981.  The appropriate authority approved his request and directed that the applicant be issued a discharge under other than honorable conditions.

5.  On 20 August 1981, he underwent a mental status evaluation.  The examining official indicated the applicant was mentally responsible and had the mental capacity to understand and participate in board proceedings.  He was psychiatrically cleared for separation.

6.  On 31 August 1981, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 3 months, and 29 days of net active service during this period.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  The applicant provided his hospital clinical notes that show he was admitted to the hospital on 29 April 1996 and diagnosed with a psychotic disorder and alcohol abuse.  On 3 May 1996, he was discharged from the hospital against medical advice.  He was diagnosed with an adjustment disorder with disturbance of conduct, alcohol dependency, and cocaine abuse. 

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

	a.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his mental health problems influenced his behavior.  There is no evidence and he has not provided any evidence to show he was suffering from mental health problems prior to his discharge and these problems caused his indiscipline.  The evidence of record shows, on 
20 August 1981, he underwent a mental status evaluation which psychiatrically cleared him for separation.  Therefore, this clinical notes indicating he was diagnosed with several mental issues 15 years later are not sufficient evidence to justify upgrading his discharge.  


2.  Although a complete copy of his discharge packet is not available for review, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy that requirement.

3.  His discharge under chapter 10, Army Regulation 635-200 also indicates that he voluntarily requested discharge in lieu of a court-martial, although the specific offense(s) are unknown.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.

4.  Based on the foregoing, there is no 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)                                         AR20130015054



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ABCMR Record of Proceedings (cont)                                         AR20130015054



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