IN THE CASE OF: 

		BOARD DATE:	    7 May 2014

		DOCKET NUMBER:  AR20130016104 


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.

2.  The applicant states:

	a.  The Army was aware of his mental disorder (anxiety, bipolar, and manic depressive) when he enlisted on 29 May 1980.  He told the recruiter he was on anti-depressant medication and the recruiter told him he could still take it while in basic training.  The recruiter went with him and got his medical records from the hospital in Queens, NY.  When he took the enlistment physical he mentioned his medication and was told not to worry about it.

	b.  When he started basic training his commander took his medications from him.  The commander told him he did not need them.  He started having panic attacks.  As a result, he was limited to certain types of training.  He was able to make it through basic training, but he suffered through his entire time on active duty until he could not deal with it and he went absent without leave (AWOL).

	c.  He is applying for disability because his existing medical condition was aggravated and made worse while in the military.

3.  The applicant provides:

* DD Form 241 (Certificate of Release or Discharge from Active Duty)
* VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim)
* Two letters from his counselors
* Character reference letter
* Service medical records

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 31 March 1980, the applicant underwent a physical examination and was found qualified for enlistment.  Item 8 (Statement of Examinee's Present Health and Medications Currently Used) of his Standard Form 93 (Report of Medical History) states, "I am in good health.  No medication."  He also reported that he'd been hospitalized for three months in 1977 after being diagnosed with an emotional breakdown (depression) for which he'd been prescribed thorazine.

3.  He enlisted in the Regular Army on 29 May 1980 for a period of 3 years.  He did not complete basic armor training.

4.  On 3 September 1980, he went absent without leave (AWOL) and returned to military control on 7 July 1984.  On 9 July 1984, during an interview, the applicant stated he went AWOL because the guys in the barracks were bullying him and pushing him around.  He talked to his commander, but the commander did nothing to correct the situation, so he went AWOL.  On 10 July 1984, charges were preferred against him for the AWOL period.

5.  On 11 July 1984, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

6.  On 3 August 1984, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  On 24 August 1984, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 4 months and 21 days of creditable active service with 1,403 days of lost time.

8.  On 22 May 1989, the Army Discharge Review Board denied his request for an honorable discharge.

9.  He provided a character-reference letter from his pastor who attests the applicant attends church and he is committed and dedicated in his attendance.

10.  He also provided two letters from his counselors who state:

* he has been in individual therapy weekly from 20 September 2012 to present
* he has progressed well
* he takes his medication and goes regularly to Narcotics Anonymous meetings
* there are no signs of violence
* he has a positive character
* he has been sober

11.  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 includes 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 and must include the individual's admission of guilt.  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.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record does not support the applicant's contention he enlisted with a mental disorder and he took anti-depression medication.   Contemporaneous medical evidence shows he was found qualified for enlistment on 31 March 1980 and he reported he was in good health and he did not take any medication in item 8 of his Standard Form 93.

2.  Although he now contends he went AWOL because he was unable to take his medication, on 9 July 1984 he stated he went AWOL because the guys in the barracks were bullying him and pushing him around.

3.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His record of service included a lengthy AWOL period (1,403 days).  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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 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)                                         AR20130016104



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ABCMR Record of Proceedings (cont)                                         AR20130016104



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