IN THE CASE OF:	   

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140014760 


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 general under honorable conditions.

2.  The applicant states, in effect, after he was discharged he was diagnosed with bipolar disorder, implying he believes this disorder accounted for his problems while on active duty.  He also mentioned that President Carter had approved legislation which allowed the dismissal of all types of discharges. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from the Army Review Boards Agency.

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 14 November 1969.  He did not complete basic combat training at Fort Polk, LA; he departed his unit on 9 January 1970 in an absent without leave (AWOL) status.  He was returned to his unit on 15 January 1970 after being apprehended by the New Orleans Police Department (NOPD) for alleged auto theft and possession of stolen property.  On 8 March 1970, he again departed his unit in an AWOL status, returning on 9 March 1970.  

3.  On 16 April 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the two periods of AWOL cited above.  

4.  On 21 April 1970, the applicant departed his unit in an AWOL status, and remained AWOL until 27 April 1970 until he was again apprehended by NOPD.  He was charged by NOPD with contributing to the delinquency of a minor and receiving stolen goods valued at about $500.

5.  On 2 June 1970, he accepted NJP for his latest period of AWOL.  On 4 June 1970, he again left his unit in an AWOL status, remaining absent until 14 June 1970.  

6.  On 30 July 1970, the applicant was convicted by a summary court-martial for breaking restriction on 4 June 1970 and being AWOL from 4 to 14 June 1970.  

7.  The applicant went AWOL again from 30 July to 5 August 1970.  He accepted NJP for this period of AWOL on 22 August 1970.   

8.  Additionally, the available evidence shows the applicant was AWOL during the following periods:

* 23 to 27 August 1970
* 28 to 31 August 1970
* 9 to 12 September 1970

9.  On 2 October 1970, he received a Mental Hygiene Consultation from a psychiatrist from at the Fort Polk Medical Department Activity.  The consultation essentially stated both the applicant and his past history were evaluated.  There were no indications of psychiatric disorder, no psychosis, or severe neurosis.  While he was mentally responsible and able to distinguish right from wrong, he showed no potential for rehabilitation.  

10.  On 5 October 1970, the applicant was convicted by a second summary court-martial of the three periods of AWOL occurring between 23 August and 12 September 1970.

11.  On 7 October 1970, he was released to the NOPD for charges related to a hit and run accident and possessing stolen property valued at about $4,000.  He was returned to his unit on 11 February 1971.  He was given a rehabilitative reassignment on 25 February 1971, but he departed his unit in an AWOL status before the reassignment could be executed.  He returned to military control on 4 March 1971.

12.  On 16 March 1971, his unit commander initiated separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge Unfitness and Unsuitability), paragraph 6a(1) (frequent incidents of a discreditable nature with civil or military authorities).  The applicant consulted counsel, was advised of the basis for this separation action, and he acknowledged the following rights:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above right in writing

13.  On 17 March 1971, he waived consideration of his case by a board of officers, did not submit statements in his own behalf, and waived representation by counsel.  He acknowledged he could face substantial prejudice in civilian life if he was given a general discharge under honorable conditions.  He further acknowledged he understood the issuance of a discharge under other than honorable conditions might make him ineligible for many or all benefits as a Veteran under both Federal and State laws.

14.  On 17 March 1971, the applicant was convicted by his third summary court-martial.  

15.  His record does not contain the approval document signed by the separation authority.  However, there is a DD Form 214 showing he was discharged under the provisions of Army Regulation 635-212 with his service characterized as under other than honorable conditions.  It also shows he completed 10 months and 25 days of creditable active service with 178 days of lost time.

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

17.  The applicant provides no evidence of a diagnosis for bipolar disorder or any other behavioral health condition.

18.  Army Regulation 635-212, in effect at the time, sets forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability.  Paragraph 6 (Applicability) states an individual is subject to separation under the provisions of this regulation when one or more of the listed conditions exist.  Included on this list are frequent incidents of a discreditable nature with civil or military authorities.

19.  Army Regulation 635-200 policy and procedures for the separation of enlisted personnel.

   a.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.
   
   b.  Paragraph 3-7b states 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.

20.  According to an online source, Healthline.com, bipolar disorder was recognized within the behavioral health community, but did not appear in the Diagnostic and Statistical Manual of Mental Disorders (DSM) until its third edition published in 1980.  The disorder is characterized by periods of mania (high energy, impulsivity, and excitability) and depression.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.  He states he was diagnosed with bipolar disorder after separation from the Army and implies this disorder should be considered as a mitigating factor that contributed to the misconduct which, in turn, led to his separation action.

2.  As part of his separation processing, he received a mental hygiene consultation.  At that time, while recognized as a mental health condition within the behavioral health community, it was not officially part of the DSM until a decade later.  His contended condition was therefore not identified.  The applicant, however, provides no evidence of a current diagnosis.  Additionally, consideration must be given to the seriousness of the offenses which resulted in his unit commander's recommendation for separation.  The regulation addresses incidents of misconduct with both military and civilian authorities.  The offenses for which he received NJP and summary courts-martial convictions all involved AWOL.  His misconduct in the civilian community entailed automobile theft, hit and run, contributing to the delinquency of a minor, and possession of stolen goods valued about $4,000.  Based upon the full scope and serious nature of the applicant's misconduct, even assuming he provided a valid diagnosis of bipolar disorder, an upgrade would not be appropriate.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation are presumed to have been met and the rights of the applicant were fully protected throughout the separation process.  

4.  Based upon the foregoing, there is insufficient evidence to grant him 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 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)                                         AR20140014760



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ABCMR Record of Proceedings (cont)                                         AR20140014760



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