IN THE CASE OF:  

		BOARD DATE:  15 July 2014

		DOCKET NUMBER:  AR20130020681 


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 (UOTHC) discharge be upgraded.

2.  The applicant states his mental health issue was not considered when he was discharged UOTHC.
 
3.  The applicant provides a District of Columbia Housing Authority memorandum showing he submitted an update to his housing assistance application.

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 19 July 1971.  He held military occupational specialty (MOS) 71B (Clerk Typist).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The available records show he:

* accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on three occasions
* was convicted by a special court-martial of being absent without leave (AWOL) from 3 February to 16 March 1972 and from 3 April to 14 August 1972

4.  On 26 March 1973, the applicant's commander initiated the applicant's discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness due to frequent incidents of a discreditable nature.  The commander indicated the action was initiated because of the applicant's habits and traits of character manifested by repeated commission of offenses.  The applicant repeatedly showed a complete lack of interest in becoming a satisfactory Soldier and his conduct indicated he would never serve any useful purpose while in the service. 

5.  He consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by and personal appearance before an administrative separation board. He also elected not to make any statements in his own behalf.

6.  A Mental Hygiene Clinic, Fort Belvoir, Virginia, report of psychiatric evaluation certificate, dated 3 April 1973, shows:

	a.  Diagnosis:  After psychiatric evaluation, the subject's diagnosis was determined to be:  "Mixed character disorder.  Marked impairment for continued service.  LOD No, EPTS (Existed Prior to Service)."

	b.  Further Findings:

		(1)  The diagnosis comes under the category of Character, Behavior and Personality Disorders and disposition is affected through administrative channels. The subject had no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels. 


		(2)  The applicant's condition was due to deficiencies in emotional, personality and characterological development of such a degree as to render him more of a liability than an asset for further military service.  

		(3)  The applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

	c.  The applicant was cleared psychiatrically for any administrative action or disposition appropriate by his command.  The psychiatric recommended the applicant be administratively separated from the service.

7.  The separation authority approved the discharge request and directed the issuance of an Undesirable Discharge Certificate.  On 20 April 1973, the applicant was discharged accordingly.  His DD Form 214 shows he completed 
10 months and 27 days of total active service with 305 days of lost time.

8.  On 23 June 1982, the Army Discharge Review Board denied his request for a change in his discharge.  

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	a.  Paragraph 3-7a states 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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his mental health issue was not considered when he was discharged UOTHC is not sufficiently mitigating to warrant relief.   The applicant was diagnosed with mixed character disorder.  He was psychiatrically cleared for administrative action.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his mental health issue, and his mental health evaluation determined that he was able to distinguish right from wrong and to adhere to the right.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

3.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20100009951



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ABCMR Record of Proceedings (cont)                                         AR20130020681



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