BOARD DATE:  19 June 2014

		DOCKET NUMBER:  AR20130018598


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 discharge.

2.  The applicant states his discharge resulted from his bipolar disorder.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and multiple pages of electronic medical documentation from the Veterans Integrated System Technology Architecture (VISTA), a computer information system maintained by the Department of Veterans Affairs (VA).

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 May 1979, the applicant enlisted in the Regular Army.  Upon completion of his initial entry training he was awarded military occupational specialty 11B (Infantryman) and he was reassigned to 1st Battalion, 30th Infantry Regiment, 3rd Infantry Division, in the Federal Republic of Germany (FRG).  

3.  His record contains a DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record – Part II), Record of Court-Martial Conviction).  According to this form, on 13 November 1980, before a summary court-martial at Schweinfurt, FRG, he was convicted of the following specifications and charges:

* 1 Specification of Charge I (Disrespect), on or about 2 October 1980
* 1 Specification of Charge II (Using Provoking Words), on or about             2 October 1980
* 1 Specification of Charge III (Assault), on or about 2 October 1980
* 2 Specifications of Charge IV (Drunk and Disorderly and Incapacitated for Proper Performance of Duties), on or about 2 October 1980

4.  On 14 November 1980, he was reassigned to the U.S. Retraining Brigade, Fort Riley, KS.

5.  On 16 January 1981, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice, for disobeying a lawful order from a noncommissioned officer, on or about 13 January 1981.

6.  On 3 February 1981, before a summary court-martial at the U.S. Army Retraining Brigade, Fort Riley, KS, he was convicted of a single specification of Charge I, for assaulting a noncommissioned officer on or about 25 January 1981.

7.  His separation documents and/or discharge packet are not available for review with this case.  However, his DD Form 214 shows:

   a.  on 27 February 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), by reason of misconduct for frequent incidents of a discreditable nature with civil or military authorities;

   b.  he was discharged in the rank/grade of private (PVT)/E-1; and

   c.  he was given an under other than honorable conditions discharge.


8.  His medical records are not available for review.  His available military personnel records are void of documentation that shows he suffered from bipolar disorder during his period of active military service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  He provides multiple pages of electronic medical documentation from VISTA, which he contends shows he suffered from bipolar disorder.  The earliest examination date referenced in the documentation appears to be 23 May 2013.  

11.  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.

   c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.  

2.  He contends his discharge should be upgraded because it resulted from bipolar disorder.  His medical records are not available for review and his available military personnel records are void of documentation that shows he was diagnosed with bipolar disorder during his period of active military service.

3.  He provides medical documentation to support his contention; however, the medical documentation that he provided reflects notes from various examinations that occurred in 2013.  As such, the documentation does not show he suffered from, or was diagnosed with, bipolar at the time of his active military service.  Therefore, a causal link cannot be made between bipolar disorder and the misconduct that precipitated his discharge.

4.  The evidence of record shows he was convicted twice by a summary court-martial.  Additionally, he received NJP for misconduct.  It appears his discharge resulted from repeated misconduct.

5.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting the 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 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)                                         AR20130018598



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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