BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140004362 


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.  

2.  He states his medical records show he was treated for psychosis at Brooke Army Medical Center (BAMC) in San Antonio.  He has been in a state mental hospital, and he was unable to request an upgrade.  He has been homeless for 20 years.  He had 4 years of honorable service.  He went to a party where there was an illegal substance in the punch.  A mistake was made by some person at the event.  He did exactly as he was told to do, and he feels he wrongfully received a UOTHC discharge.  He was a sergeant (SGT)/E-5 and reduced to pay grade E-1 when only two pay grades should have been taken.  

3.  He provides no additional evidence in support of his 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.  On 2 May 1989, the applicant enlisted in the Regular Army.  After completing initial entry training he was awarded military occupational specialty 19K (M-1 Armor Crewman).  

3.  On 24 September 1992, he reenlisted.  He was promoted to SGT/E-5 effective 1 January 1993.  

4.  The complete facts and circumstances of his discharge are not contained in the available records.  However, his records show the following:

	a.  On 17 March 1994, Headquarters, 1st Cavalry Division, issued – 

		(1)  Orders 048-171 reducing him from SGT/E-5 to private one/E-1 effective 16 March 1994 under the provisions of paragraph 6-11, Army Regulation 600-200 (Enlisted Personnel Management) and Army Regulation 635-200 (Personnel Separations - Enlisted Personnel); and 

		(2)  Orders 048-122 reassigning him to the U.S. Army Transition Point for separation processing and discharge effective 18 March 1994.  

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 March 1994 in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 4 years, 10 months, and 17 days of total active service with 5 days of time lost.  His service was characterized as UOTHC.

5.  His service medical records are not available for review.  The available records are void of documentation indicating he was treated for psychosis at BAMC.  

6.  On 2 February 2007, the President, Army Discharge Review Board (ADRB), notified him that the ADRB had determined he had been properly and equitably discharged and that his request for a change in the character of and/or reason for his discharge was denied.

7.  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.  Issuance of a UOTHC discharge required reduction to the lowest enlisted grade.  

	b.  Paragraph 3-7a provides that an honorable discharge (HD) 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 provides that a general discharge (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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge.

2.  The complete facts and circumstances of his discharge are not available; however, to be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have had to be charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge.  

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 applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial and to have admitted guilt to one or more of the charges against him.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  A UOTHC discharge would have been appropriate under these circumstances, and this characterization of service required his reduction to E-1.

4.  There is no documentary evidence supporting his contention that his mental health should be considered as a mitigating factor in characterizing his service.  In the absence of documentary evidence indicating error, injustice, or inequity in the discharge he received, there is an insufficient basis upon which to upgrade his UOTHC discharge to an HD or a GD.  
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)                                         AR20140004362





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ABCMR Record of Proceedings (cont)                                         AR20140004362



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