IN THE CASE OF: BOARD DATE: 22 September 2015 DOCKET NUMBER: AR20150002102 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 his discharged be upgraded to a medical/honorable discharge. 2. The applicant states: a. He had a major mental problem during his last tour of duty. It was a very bad time for him and his wife did not want him in the Army. He found his wife at a hotel room with another man and he called the local police to help him talk to her. She explained that she was not cheating on him, she was hooking. During that time she would leave his two young children, ages 2 and 4, with a 12-year-old child to keep while he was at work. He would call to check on the kids and they would tell him that they were alone and had not eaten. He was not sure how long his wife had been hooking, but he had known about it for at least two years before he went absent without leave (AWOL). b. He requested to speak with a psychiatrist because of this situation and was seen a few times. He was very concerned about his small children; he had to ensure they were being taken care of in a safe environment. The psychiatrist recommended he have a medical board due to his mental condition. He asked the Army to chapter him out of the service so he could take care of his children but the Army did not have sufficient reason to initiate a chapter. He was a good Soldier with a good record before he went AWOL; he was never in trouble, and he even reenlisted. He did not go AWOL because he was a bad Soldier, he went AWOL because his children needed him. He was obligated as a Solder and a man to protect his children. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty), for the period ending 29 September 1977 * a memorandum with endorsements recommending his discharge and character of service, dated 7 August 1978 * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 7 August 1978 * DD Form 214, for the period ending on 6 September 1978 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 28 March 1974 and held military occupational specialty 11B (Light Weapons Infantryman). The highest rank/grade he attained while serving on active duty was specialist five (SP5)/E-5. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: a. 5 September 1974, for being absent from his unit without authority without authority from on or about 0700 hours on 3 September 1974 to on or about 1700 hours on 3 September 1974. b. 5 November 1975, for being found sleeping at his post as a sentinel on or around 0633 hours on 15 October 1975, and for disobeying a lawful order from a sergeant first class (SFC) to remove his hand from his pockets on or about 0145 hours on 30 October 1975. 4. He was honorably discharged from active duty on 29 September 1977 and reenlisted on 30 September 1977. 5. He accepted NJP under the provisions of Article 15 of the UCMJ on: a. 17 January 1978, for disobeying the lawful order of a sergeant (SGT) to report for duty at 0600 hours on 15 December 1977 to clean the latrine, for failing to go to his appointed place of duty at the prescribed time of 0600 hours on 16 December 1977, and for absenting himself from his unit without authority from on or about 0800 hours on 9 January 1978 to on or about 1630 hours on 9 January 1978. b. 23 March 1978, for being AWOL from on or about 0800 hours on 10 February 1978 to on or about 0955 hours on 21 March 1978. 6. He provided an SF 600, dated 27 January 1978, which stated the applicant's chief complaint was "discharge from service and marital problems." The diagnosis was listed as "depression" and the treatment included a referral to the company and brigade chaplains. 7. On 14 July 1978, court-martial charges were preferred against him for being AWOL from on or about 11 April 1978 to on or about 5 July 1978. 8. On 17 July 1978 his immediate commander recommended a special court-martial with the disposition of a bad conduct discharge and 18 July 1978 and 21 July 1978 his intermediate commanders made the same recommendation. 9. On 1 August 1978, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. 10. In this request for discharge he acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 11. The applicant elected to submit a statement, dated 1 August 1978, wherein he stated he had one Article 15 for a 39 day AWOL, a second for disobedience to a noncommissioned officer (NCO) and failure to repair, and a third for a short AWOL. He stated he was aware an other than honorable discharge was something that would hurt him but if he got convicted at a court-martial he would go to Fort Riley, KS and would probably get a chapter 14 with an other than honorable discharge. He stated he had over 2 years left to complete and he did not know if he could make it. He could not say that he would not go AWOL again. He stated that if he did not like the situation he was in then he would go AWOL again. 12. His record contains an SF 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 4 August 1978, and an undated Report of Mental Health Evaluation. a. On his SF 93 he states he was in fair health and indicated he had previously or was currently suffering from swollen or painful joints, dizziness or fainting spells, eye trouble, ear/nose/throat trouble, skin disease, pain or pressure in chest, high or low blood pressure, venereal disease, recent weight gain or loss, and depression or excessive worry. b. His SF Form 88 shows the examining physician found him medically qualified for separation or retention. c. His mental status evaluation shows his behavior was normal, he was fully alert and oriented, his mood was level, his thinking was clear, his thought content normal, his memory was good, and no significant mental illness detected. Additionally, he was considered to be mentally responsible, able to distinguish right from wrong and adhere to the right, he had the mental capacity to understand and participate in board proceedings, and he met medical retention standards. 13. On 7 August 1978, his Troop Commander recommended approval of the applicant's request for a chapter 10 discharge with the issuance of an under other than honorable conditions characterization of service. The commander stated his reason for the recommendation was that the applicant had unsurmountable personal problems that were a deterrent to his ability to perform in the service. The applicant had gone AWOL in excess of 30 days and was subsequently dropped from the rolls. Upon return from AWOL the applicant stated he would not stay in the service any longer and that if he was not released from active duty he would continue to go AWOL. 14. On 7 August 1978, his Squadron Commander recommended approval of the applicant's request for a chapter 10 discharge with the issuance of an under other than honorable conditions characterization of service. The commander stated his reason for the recommendation was that both he and the chaplain had personally counseled the applicant in order to help him solve his family problems, which have significantly contributed to his indiscipline, but to no avail. He does not have the necessary self-control to perform his duties when faced with adversity at home or on the job. The brigade commander did not believe he could be rehabilitated because he was already in his 4th troop in the squadron. 15. On 8 August 1978, the Brigade Commander recommended approval of the applicant's request for a chapter 10 discharge with the issuance of an under other than honorable conditions characterization of service. 16. On 21 August 1978, the separation authority, the Division Commander, approved his request for voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable discharge. Accordingly, he was discharged on 6 September 1978. 17. His DD Form 214 confirms he was discharged on 6 September 1978 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under other than honorable conditions characterization of service. He completed 7 months of net active service during this period of service and had 130 days of lost time. 18. There is no indication that he applied to the Army Discharge Review Board to request an upgrade of his discharge within that Board’s 15-year statute of limitations. 19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 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 discharge under other than honorable conditions is normally considered appropriate. At the time, an undesirable discharge was normally given. a. Paragraph 3-7a provides 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. b. 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. 20. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for medical evaluation boards (MEB's), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 21. Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB). The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 22. Army Regulation 635-40 states a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision. DISCUSSION AND CONCLUSIONS: 1. The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 2. There is no evidence in the available records and he failed to submit any evidence that shows he suffered from a medical condition that would have warranted entry into the PDES. Additionally, he was charged with an offense for which he could have been dismissed or given a punitive discharge. As a result he was not eligible for referral to the PDES for disability processing. Based upon the applicable regulations, he does not meet the criteria for a medical discharge. 3. His record shows he was AWOL for 130 days and that he received several other NJPs for disobeying NCOs, and failure to report. It is clear that he had significant family and marital problems and that his command attempted to assist him. However, his problems do not excuse his behavior. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge. 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) AR20150002102 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002102 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1