IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20140021396 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X__ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20140021396 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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20140021396 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 reconsideration of his earlier request to upgrade his characterization of service from under other than honorable conditions (UOTHC) to general, under honorable conditions. 2. The applicant states he was suffering from mental health issues at the time of his service which went undiagnosed. He was therefore not offered any medical treatment. 3. The applicant provides copies of his Department of Veterans Affairs (VA) medical records (approximately 58 pages). 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2000046302 dated 11 January 2001. Based on recent changes to policy related to mental health issues, it would be appropriate to reconsider the applicant’s case as an exception to the 1-year policy for reconsiderations. 3. The original Record of Proceedings states, in summary: a. The applicant completed basic training. During his advanced individual training (AIT), non-judicial punishment was imposed against him on 7 July 1971 for being absent without leave (AWOL) from 6 July to 7 July 1971. His punishment consisted of an oral reprimand and extra duty. b. He completed his AIT and was advanced to pay grade E-3 effective 5 November 1971. He was transferred to Korea on 3 December 1971. c. On 23 February 1972, a suspension of favorable personnel actions was initiated against the applicant because he was pending trial by a court-martial. d. The facts and circumstances surrounding his administrative discharge are not present in the available records; however, his records do contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) signed by the applicant. It reflects his rank as private, pay grade E-1 and that he received a UOTHC characterization of service on 12 March 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He served 10 months and 12 days of total active service. e. There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. f. Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, the Board concluded that in the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. g. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. h. The Board determined that there was no basis for granting the applicant's request. 4. In the processing of this case, an advisory opinion was received, wherein a clinical psychologist stated: a. that the applicant’s history of misconduct included a period of AWOL from 6 July to on or about 7 July 1971; b. that the applicant’s record reasonably supports schizophrenia, paranoid subtype existed at the time of his military service. This subtype is characterized by one or more delusions or frequent auditory hallucinations, and may be considered a likely mitigating factor for the applicant’s misconduct. 5. On 4 April 2016, a copy of the advisory opinion was sent to the applicant was his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation 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 may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A UOTHC discharge is normally considered appropriate. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends that the characterization of his discharge should be upgraded to general, under honorable conditions because he suffered from mental health issues that went undiagnosed and for which he did not receive treatment. 2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. 3. The available records do not contain any evidence of the misconduct that led to the applicant's discharge. Furthermore, the applicant has not provided any substantiating evidence to support his contention that his discharge was unjust. As such, it is not possible at this time to determine if his mental health may have been a mitigating factor with regard to the misconduct that led to his separation. 4. The psychologist opined that the applicant’s schizophrenia may be considered a likely mitigating factor for the applicant’s misconduct consisting of being AWOL for about a day. However, there is no evidence showing that this short AWOL was the basis for his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140021396 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140021396 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2