IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140004782 


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, in effect, correction of his records to show he was discharged due to a disability that existed prior to service.

2.  The applicant states:

* He was diagnosed with bipolar manic depression in 1998
* It was not known at the time he served in the Army
* His behavior at the time he served in the Army was not caused by his own doing, but was due to his illness of bipolar
* He was not able to control his actions and he was unaware of his illness at the time of his service
* His illness affected his performance

3.  The applicant provides two Discharge Summaries from Moccasin Bend Mental Health Institute, TN showing he was admitted on 15 April 2003 and
25 July 2008.

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 31 August 1972.  He completed training as a food service specialist.

3. On 12 January 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being:

* absent without leave (AWOL) from 10 to 13 November 1972
* AWOL from 25 November to 7 December 1972
* AWOL from 11 December 1972 to 8 January 1973

4.  He accepted NJP on 14 March 1973 for failure to go to his appointed place of duty.

5.  Charges were preferred against the applicant on 28 September 1973 for being AWOL from 2 June to 24 August 1973 and from 30 August to 24 September 1973.

6.  A Report of Medical Examination, dated 26 September 1973, shows the applicant was found to be qualified for separation.  His statement of medical condition shows he checked the block showing "There has been no change in my medical conditions."

7.  The facts and circumstances pertaining to the applicant's discharge are not filed in his Official Military Personnel File.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 19 October 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 8 months and 15 days of total active service.  He was issued an Undesirable Discharge Certificate.

8.  A review of the available records fails to show the applicant was suffering from any medically unfitting condition that would have required him to be processed for discharge through medical channels.



9.  The applicant provides two Discharge Summaries from Moccasin Bend Mental Health Institute, which shows he was diagnosed with bipolar disorder at the time of his discharge from that facility on 17 April 2003 and on 8 August 2008.

10.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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 states 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 was discharged on 19 October 1973.  The earliest medical documentation he has provided showing a diagnosis of bipolar disorder is dated 17 April 2003, nearly 30 years after his discharge from the Army.  

2.  There is no evidence in the available record, nor has the applicant provided evidence, that shows he was suffering from a disability that existed prior to service at the time of his discharge.

3.  The available evidence shows the applicant, after being informed that charges were pending against him for his AWOL offenses, submitted a request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority directed the issuance of an undesirable discharge.

4.  The applicant has not shown an error or injustice in the actions taken by the Army in his case.  In view of the foregoing, his request should be denied.

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)                                         AR20140004782



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ABCMR Record of Proceedings (cont)                                         AR20140004782



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