IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130021551 


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 (UOTHC) discharge to a general discharge (GD).  

2.  He states that while in the military he had a nervous breakdown, jumped out of a window, and was put in jail.  He states he was very young when he joined the military.  He came from a broken family.  His father was abusive and unstable and was married four times.  He has been diagnosed as paranoid, and he can become violent at a moment's notice.

3.  He provides no documentary evidence in support of his request.

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 18 March 1981, the applicant enlisted in the Regular Army at 19 years of age.  After completing initial entry training, he was awarded military occupational specialty 64C (Motor Transport Operator).  

3.  On 31 January 1983, Headquarters, 79th Engineer Combat Battalion (Heavy), issued Summary Court-Martial Order Number 2, which shows he pled guilty and was found guilty of:

* behaving with disrespect toward a superior commissioned officer
* two specifications of failing to obey a lawful order from a superior commissioned officer
* willfully disobeying a lawful command from a superior commissioned officer
* four specifications of willfully disobeying lawful orders from superior noncommissioned officers
* breaking restriction

4.  The summary court-martial convening authority approved his sentence to confinement at hard labor for 25 days and directed that he be confined in the U.S. Army Retraining Brigade, Fort Riley, KS.  

5.  A DA Form 2627-1 (Summarized Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)) shows he received nonjudicial punishment (NJP) for being derelict in the performance of his duties on or about 16 February 1983 while assigned to the 5th Unit, 3rd Battalion, U.S. Army Correctional Activity, Fort Riley, KS.  

6.  A Fort Riley Form 1806 (Training Progress Notes), dated 25 February 1983, shows the applicant was referred to the Battalion Social Work Section for discharge evaluation to rule out psychiatric conditions requiring treatment or disposition through medical channels.  

	a.  He maintained he did not care about his unsatisfactory performance and appeared unconcerned about being discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14.  

	b.  A mental status evaluation revealed that he was alert, coherent, and oriented in all spheres.  He understood right from wrong and was capable of adhering to the right.  He fully understood the nature of the administrative action initiated against him, but stated it was of little consequence to him.  He was not observed to have suicidal or homicidal ideations nor any psychotic thought processes at the time.  

	c.  The examining social work officer stated that, although the applicant was very capable of soldiering, he chose not to adhere to military standards.  He found the applicant to be responsible for his behavior and stated the applicant was cleared for any administrative action deemed necessary by the command.

7.  On 24 March 1983, he acknowledged notification to appear before a board of officers that would determine whether he should be discharged for misconduct prior to his expiration term of service (ETS).  He was appointed counsel and advised of his rights.  

8.  A memorandum, subject:  Psychiatric Evaluation, dated 25 March 1983, shows the 1st Infantry Division Psychiatrist evaluated the applicant.  

	a.  The psychiatrist diagnosed him with passive-aggressive personality disorder manifested by obstinate and negativistic behaviors and also noted the presence of malingering behaviors.  

	b.  The psychiatrist noted the applicant had been hospitalized from 7 to 
10 March 1983 at the Inpatient Psychiatry Service.  The issue of a possible psychotic disorder was raised, but observation on the ward indicated otherwise.  The applicant's unusual behaviors were present only when he was aware of the staff's observation of him, and such behaviors were of a malingering, intentional appearance.  

	c.  The psychiatrist determined the applicant had no mental disorder warranting disposition through medical channels but did have evidence of a personality disorder.  The psychiatrist stated the applicant was, nonetheless, responsible for his actions.

9.  The complete documentary record of his discharge processing is not available for review; however, his record contains the following documents that describe the facts and circumstances of his discharge processing.

	a.  His DD Form 214 shows he was discharged on 1 April 1983, under the provisions of chapter 10, Army Regulation 635-200, with a UOTHC discharge.  

	b.  An Army Council of Review Boards Case Report and Directive, dated 25 February 1991, contains a summary of the facts and circumstances of his discharge showing, in part:




   	(1)  On 28 March 1983, he was charged with:

* failure to go on 22 March 1983
* disobeying a lawful order on 4, 15, 16, 21, and 24 March 1983
* being disorderly in command on 4 and 24 March 1983

   	(2)  On 29 March 1983, he consulted with legal counsel, requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200, and did not submit a statement.

   	(3)  On 31 March 1983, the separation authority approved his request and directed the issuance of a UOTHC discharge.

10.  On 4 April 1991, he was notified that the Army Discharge Review Board had denied his request for a change in the character of and/or reason for his discharge.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7b provides that a GD 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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  The applicant was 19 years of age when he enlisted.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  The available records also show that a psychiatrist found he was responsible for his actions.  

4.  Although the documentary record is incomplete, in the absence of evidence showing otherwise, the applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

5.  He was convicted of several offenses by a summary court-martial and he received NJP.  By requesting discharge under the provisions of Army Regulation 635-200, chapter 10, he admitted he was guilty of one or more charges against him for which the authorized punishment included a punitive discharge.  In light of this misconduct, his service was unsatisfactory.  Therefore, he is not entitled to 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 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)                                         AR20130021551



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ABCMR Record of Proceedings (cont)                                         AR20130021551



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