RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 May 2007
DOCKET NUMBER: AR20060016429
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Gerard W. Schwartz
Acting Director
Ms. Joyce A. Wright
Analyst
The following members, a quorum, were present:
Mr. Jeffrey C. Redmann
Chairperson
Mr. Ronald J. Weaver
Member
Mr. David W. Tucker
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge.
2. The applicant states, in effect, that he was discharged under other than honorable conditions for a reason related to an AWOL (absent without leave) charge. In January 2000, he departed Fort Jackson, SC without leave as he was becoming very paranoid and depressed. In August 2000, he was hospitalized in Los Angeles (LA), at the UCLA (University of California, LA) Medical Center, for a suicide attempt and was put on anti-psychotic medication while at the hospital. He was arrested by police for an outstanding warrant from the U.S. (United States) Army. He was returned to the Army's custody and discharged from Fort Sill, Oklahoma. He was never given a chance to explain why he left without permission.
3. He states that he is currently at Patton State Hospital undergoing treatment for schizophrenia and personality disorders. He feels that these diagnoses were the cause for his absence from the Army. He knows there is no mitigating one's absence from active duty to their country, but he hopes that it might go to explain his mind set at the time of the offense.
4. The applicant provides no additional documentation in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 5 June 2002, the date of his discharge. The application submitted in this case is dated 3 November 2006.
2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicants failure to timely file.
3. The applicant's record shows he enlisted in the U. S. Army Reserve on 13 September 1999. He was ordered to active duty for training on 20 October 1999. He was scheduled to attend one station unit training (OSUT), which consisted of basic combat training and advanced individual training, at Fort Jackson, South Carolina, for training in military occupational specialty (MOS), 71L, Administrative Specialist.
4. While attending OSUT, the applicant departed AWOL on 19 March 2000 and remained AWOL until he surrendered to military authorities on 16 May 2000 at the Personnel Control Facility, Fort Sill, Oklahoma.
5. On 18 May 2000, prior to completion of his outprocessing, the applicant departed AWOL again.
6. Charges were preferred against the applicant on 26 September 2000, for being AWOL from 19 March 2000 to 16 May 2000 and from 18 May 2000 to the present date, while he was still in an AWOL status.
7. The applicant was apprehended by civilian military authorities on 19 February 2002 and was returned to military control.
8. On 1 March 2002, he consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge characterized as UOTHC were issued. He waived his rights and elected not to submit a statement in his own behalf.
9. On 20 May 2002, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge.
10. The applicant was discharged on 5 June 2002. He had a total of 9 months and 13 days of net active service and 700 days of time lost due to being AWOL.
11. On 23 September 2005, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.
12. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. 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 at any time, after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate
13. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
14. 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. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.
DISCUSSION AND CONCLUSIONS:
1. The date of application to the ABCMR is within three years of the decision of the Army Discharge Review Board; therefore, the applicant has timely filed.
2. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the applicant's request for discharge was made under coercion or duress.
3. The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.
4. The applicant has provided no evidence to show that his discharge was unjust. He also has not provided any evidence to mitigate the character of his discharge.
5. The applicant alleges that his reasons relating to his absence were paranoia and depression; however, the official record does not contain the applicant's service medical records and the Board was unable to determine whether his contentions were sufficiently mitigating to warrant an upgrade of the discharge under review. Further, the applicant failed to submit any current medical evidence supporting his contentions.
6. The applicant alleges that he was hospitalized in August 2000, while in an AWOL status, at the UCLA Medical Center, for a suicide attempt and put on medication. The applicant has provided no evidence, and there is none, to show that he was hospitalized in August 2000. His current status as an inpatient for treat for schizophrenia and personality disorders at the Patton State Hospital is also acknowledged; however, it does not support a change or an upgrade of his UOTHC discharge to general.
7. The evidence of record shows that the applicant accumulated a total of 700 days of lost time due to being AWOL. An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his discharge.
8. The applicant alleges that he was never given a chance to explain why he departed without permission; however, when he returned to military control and charges were brought against him, he had ample opportunity. There is no evidence in the available records, and the applicant has provided none, to show that either he or his counsel informed his command that he was paranoid and depressed and that this was the reason for his AWOL.
9. It is noted that had he informed his command of his problems, he would have been referred to the designated service agencies to assist him, and this help may have prevented his AWOL.
10. In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JCR___ ___DWT_ __RJW__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.
______Jeffrey C. Redmann___
CHAIRPERSON
INDEX
CASE ID
AR20060016429
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070524
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
20020605
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
144
2.
3.
4.
5.
6.
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