IN THE CASE OF:
BOARD DATE: 18 June 2015
DOCKET NUMBER: AR20140016706
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. The applicant states:
a. his diagnosis of paranoid schizophrenia was left untreated, contributed to his unauthorized absence from duty and his ultimate UOTHC discharge; and
b. he was treated for mental illness prior to his discharge.
3. The applicant provides no additional evidence.
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 initially enlisted in the Regular Army (RA) on 29 July 1971. He was trained in and awarded military occupational specialty 76Y (Supply Specialist). The highest rank he attained was specialist five/pay grade E-5 effective 3 August 1974
3. He continuously served during the following two periods of honorable service:
* 29 July 1971 - 29 April 1973
* 30 April 1973 30 January 1977
4. On 31 January 1977, the applicant reenlisted in the RA and served until he was discharged on 21 December 1978, having completed a total of 7 years and 21 days of total active duty service.
5. His Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing. However, the record does contain a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 10, in lieu of trial by court-martial with a UOTHC characterization of service. Item 21 (Time Lost Preceding Two Years) of this DD Form 214 shows 124 days and item 27 (Remarks) shows his time lost was under the provisions of Title 10, U.S. Code, section 972, from 11 June 1987 through 12 October 1978. In addition, he had 39 days excess leave. The Army authorizing official signed the DD Form 214; however, the applicant was not available for signature.
6. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
7. The applicant's military record contains no medical evidence and he provides no evidence to show he suffered from paranoid schizophrenia or any other mental illness during his period of service.
8. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offense chargeable under the Uniform Code of Military Justice. A punitive discharge (Dishonorable Discharge or Bad Conduct Discharge) is authorized for an absence without leave (AWOL) offense (time lost) of 30 days or more. Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months and a forfeiture of all pay and allowances.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 provides 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 must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge. The request may be submitted at any time after charges have been preferred. Although an HD or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.
b. Paragraph 3-7a provides that an 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 members 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 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 HD.
10. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his UOTHC discharge should be upgraded to a GD because he suffered from paranoid schizophrenia and other mental illnesses. This issue was carefully considered. However, there is no evidence available showing the applicant suffered from any disqualifying mental or physical condition during his military service.
2. The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a DD Form 214 that identifies the reason and characterization of the applicant's discharge. This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with 124 days
of lost time and that he received a UOTHC discharge. This separation document carries with it a presumption of government regularity in the separation process.
3. In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ. He would have voluntarily requested separation from the Army in lieu of trial by court-martial and procedurally he was required to consult with defense counsel. In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.
4. Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.
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) AR20140016706
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ABCMR Record of Proceedings (cont) AR20140016706
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