IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150005254 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: 15 September 2016 DOCKET NUMBER: AR20150005254 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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: 15 September 2016 DOCKET NUMBER: AR20150005254 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, in effect, reconsideration of his request that his discharge under other than honorable conditions (UOTHC) as a result of civil conviction for aggravated robbery with a deadly weapon be upgraded so that he will be eligible for Department of Veterans Affairs (VA) benefits. 2. The applicant states: a. he was charged with insubordination and dereliction of duties. b. he was given three Article 15s and reduced in rank. c. in effect, it is unjust to combine his first enlisted period for which he received an honorable discharge with his second period for which he received an undesirable discharge, thereby ignoring his honorable period of service. d. he was refused a Judge Advocate General's Corps (JAG) officer when he was ordered to waive his Miranda rights. 3. The applicant provides a VA Statement of the Case dated 20 October 1993 related to the applicant's appeal of the VA's denial of education benefits. In part, it states that the VA notified the applicant that he did not qualify for unconditional discharge VA benefits and that his entire service from 24 February 1972 to 22 July 1976 must be considered as one period by the VA for education benefit eligibility. For this period, the VA stated that the applicant received an other than honorable discharge and therefore was not entitled to educational assistance allowance for this period of service. CONSIDERATION OF EVIDENCE: 1. 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 AC82-01228 on 19 May 1982. a. The applicant contended that: (1) He should be granted a general discharge or a medical discharge. (2) His reenlistment code should be changed. (3) All of his Article 15s should be removed from his records and his forfeitures of pay should be returned. (4) The 581 days absent without leave (AWOL) while in prison should be changed to a different status or category. (5) He should be granted a complete physical and mental status exam. b. His counsel contended that the applicant: (1) Suffered from schizophrenia, paranoid type, prior to discharge. (2) Participated in a drug rehabilitation program at Fort Hood, Texas. (3) Was sentenced by a civil court on 6 January 1975 but was not discharged until 22 July 1976. (4) May not have been responsible for this actions. c. The ABCMR denied his requests finding no error or injustice in his discharge or records. The ABCMR found: (1) The discharge proceedings were conducted in accordance with law and regulations and that his characterization of service of under conditions other than honorable was commensurate with his level of misconduct and his overall record of military service. (2) There was no evidence of record to show that the applicant, while on active duty, was ever treated for or hospitalized for the mental health condition he claimed he had, or any similar condition. (3) The applicant's 581 days of lost time due to civilian confinement was properly charged under Title 10, U.S. Code, section 972. (4) The applicant's pending Uniform Code of Military Justice (UCMJ) charges of larceny and destruction of property at the time he was taken into custody by civil authorities on charges of aggravated robbery with a deadly weapon precluded his being considered for medical separation under provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). (5) His additional contentions were considered but found to be an insufficient basis for a change in the characterization of his service. d. On 10 June 1982, The Adjutant General informed the applicant by letter that his application to the ABCMR had been denied. 2. Since 1982, the applicant has requested reconsideration of the ABCMR's decision eight times and requested reconsideration of the earlier ADRB decisions two times. Each time, his contentions, evidence, and the records were reviewed confirming that there were no errors or injustice in his military records or his UOTHC discharge. Applications were denied or returned without action based on the absence of new substantive evidence or argument that had not been previously considered. a. Case AC82-01228A, request for reconsideration of AC82-01228, was denied on 4 November 1983. The letter states that the applicant's case had received repeated sympathetic and impartial reviews which had failed to disclose evidence of error or injustice in his military records or his discharge. b. A request for reconsideration was denied on 8 November 1993. c. Case AC82-01228B, a request for reconsideration of AC82-01228, was denied on 2 June 1994. d. Case AC94-11115, a request for reconsideration, was denied on 10 February 1995. e. Case AR20120017391, a request for reconsideration, was returned without action on 21 December 2012. The applicant was informed that because of his prior reviews and requests for reconsideration, he was no longer eligible for further reconsideration. f. Case AR20130019404, a request for reconsideration, was returned without action on 4 December 2013. The applicant was informed that because of his prior reviews and requests for reconsideration, he was no longer eligible for further reconsideration. g. Case AR20130006997, a request for reconsideration, was returned without action on 19 April 2013. The applicant was informed that because of his prior reviews and requests for reconsideration, and because his request for reconsideration exceeded the regulatory 1-year limitation on reconsideration requests, his applications were no longer eligible for further reconsideration. h. Case AR20130021874, a request for reconsideration, was returned without action on 28 January 2014 April 2013. The applicant was informed that because of his prior reviews and requests for reconsideration, and because his request for reconsideration exceeded the regulatory 1- year limitation on reconsideration requests, his applications were no longer eligible for further reconsideration. He was further informed that this decision on request for reconsideration was the final administrative action taken by the Secretary of the Army. There was no further action contemplated by the ABCMR since the applicant was not eligible for any further reconsideration by the Board. i. Case AR20140001423, a request for reconsideration of the 1980 Army Discharge Review Board (ADRB) denial of his request for a discharge upgrade, was returned without action on the basis that the ADRB does not have authority to consider his application for discharge upgrade after the ABCMR has issued a decision on the same matter. The notification letter again informed him that he had exhausted his requests for reconsideration with the ABCMR. j. Case AR20140001423, a request for reconsideration of the 1980 ADRB denial of his application, was returned without action. The applicant was notified that the ADRB does not have authority to consider his application for discharge upgrade after the ABCMR has issued a decision on his discharge. The letter again informed him that he had exhausted his requests for reconsideration with the ABCMR. 3. The applicant enlisted in the Regular Army on 24 February 1972 and advanced through the ranks to specialist four in military occupational specialty 31S (Field General Communication Security Repairer). He was honorably discharged on 27 March 1974 to reenlist on 28 March 1974 for a period of 4 years. On 1 June 1974, he was assigned to the 391st Signal Company, Fort Hood, TX. 4. On 17 June 1974, the applicant received an Article 15 for failure to go to his appointed place of duty while at the Basic Leadership Course. He did not request a hearing but did present matters in defense in person. His punishment was reduction to the grade of E-3, forfeiture of $75, and 14 days of extra duty. He did not appeal. 5. On 30 July 1974, the applicant received an Article 15 for failure to go to his appointed place of duty. He did not request a hearing but submitted a statement in his defense. His punishment was reduction to the grade of E-2, forfeiture of $80, and restriction for 14 days. He did not appeal. 6. On 27 August 1974, the applicant was arrested by Criminal Investigation Command (CID) agents on two counts of armed robbery with a deadly weapon for robbing two different gas station attendants at gun point on the evening of 26 August 1974. The gun and money were found in the applicant's locker. The applicant was charged by a civil magistrate and released on bond. 7. On 11 September 1974, the applicant’s commander received a letter from the Sheraton Crest Inn in Austin, TX, stating the applicant had written a check which was returned for insufficient funds and then attempted to pay the debt with a credit card which was denied for being over the limit. 8. On 17 October 1974, the applicant received an Article 15 for being asleep while on barracks guard duty on 19 September and having a concealed weapon on post on 27 August 1974. He did not request a hearing but did present matters in defense in person. His punishment was reduction to the grade of E-1 and restriction for 14 days. He appealed the Article 15. The appeal was considered by a JAG officer who found that the proceedings were conducted in accordance with law and regulations and that the punishments imposed were not unjust or disproportionate to the offenses committed. 9. On or about 5 November 1974, the applicant was under investigation for larceny and destruction of private property within his company area. 10. On 6 January 1975, the applicant was convicted by a civil court of two counts of aggravated robbery with a deadly weapon and sentenced to 10 years confinement in the penitentiary. He was confined in a Texas Department of Corrections prison. 11. On 16 January 1976, the applicant's company commander recommended discharge under the provisions of Army Regulation 635-206 (Discharge – Misconduct – Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) since the applicant was in civilian confinement. The applicant acknowledged his statement of rights and requested a board of officers and representation by counsel. The battalion and brigade level commanders reviewed the recommendation and recommended approval. 12. On 19 May 1976, a board of officers convened to consider the applicant's case. The applicant was represented by his defense counsel, a JAG captain. Considering the applicant's military service, the evidence of misconduct, and the civil conviction for two counts of aggravated robbery with a deadly weapon with sentence to confinement for 10 years, the board recommended that the applicant be discharged with an undesirable discharge. 13. The lieutenant general commander of III Corps and Fort Hood reviewed the recommendation for elimination and the recommendation of the board of officers. On 25 May 1976, he approved the undesirable discharge. The applicant was so discharged on 22 July 1976 under the provisions of Army Regulations in effect at the time: Army Regulation 635-206 for misconduct, civil conviction and confinement; and Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), section 6, for discharge prior to expiration of term of service. His service for this period was characterized as UOTHC. 14. In a 22 September 1976 letter, the III Corps and Fort Hood Staff Judge Advocate (SJA) stated that he had reviewed the applicant’s discharge with his defense counsel and his request to be paroled from civil confinement to the Army. The SJA informed the applicant that there was no provision for his request. He also indicated that the applicant’s defense counsel had carefully explained appellate rights to the applicant. The SJA informed the applicant that his 581 days of AWOL due to his civil arrest and confinement was correct and not subject to back pay. The SJA also informed that applicant that he had reviewed his elimination board proceedings and found that they were conducted in accordance with regulation. He concluded that the applicant’s UOTHC discharge was correct in law and fact. 15. The applicant was paroled on 30 November 1978 with an anticipated release from parole date of 22 June 1981. 15. On 3 May 1978, the ADRB reviewed the applicant's military record and his UOTHC discharge due to conviction by a civil court. The applicant contended: his discharge was based on his civil conviction and not on his military service; the doctors refused to give him medication for hypertension so he turned to heroin for relief; and he was eligible for a better discharge under the Laird Memorandum. The ADRB found that his UOTHC discharge was proper and equitable. The Board made the following findings: a. The applicant was properly discharged for civil conviction under the provisions of Army Regulation 635-206. b. His service was characterized as UOTHC based upon his duty performance and disciplinary record. c. The board found no documentary evidence to suggest that the applicant received inadequate medical treatment. It was noted that the applicant testified that he was involved with drugs before he began treatment for hypertension. A review of the applicant’s records revealed no documentation of the applicant’s involvement with drugs or rehabilitation. The board did not find any mitigating value in the applicant’s contention that he was under the influence of drugs when he committed the two armed robberies. d. The applicant entered his last tour of duty nearly 3 years after the cut-off date of the Laird Memorandum concerning drug rehabilitation discharges and the applicant was not discharged for drugs, so the provisions of the Laird Memorandum did not apply. 16. On 29 February 1980, the applicant personally appeared before the ADRB. He contended that his UOTHC discharge was unduly harsh; his civil conviction was a first offense; he was having medical problems with drugs, psychiatric assistance, treatment for hypertension, and a collapsed lung; he should have been medically discharged based on medical records from his civilian confinement before he was discharged; and he was having personal problems with his recent marriage. The ADRB found that his UOTHC discharge was proper and equitable and denied his request. The Board made the following findings: a. Considering the offenses that led to the applicant’s separation, the UOTHC discharge was proper and not too harsh. b. There was no evidence in the file to support the applicant’s contention that he had personal and marital problems. c. There was no evidence in the military medical records indicating the applicant had psychiatric problems or was a drug abuser prior to his civil confinement. There was no evidence that the applicant was under the influence of alcohol or drugs at the time he committed the two robberies. d. The applicant’s service record in his first enlistment demonstrated that he did have the capability for satisfactory service, but in his second period of service, he demonstrated serous misconduct requiring a UOTHC discharge. Considering all the applicant’s records and his evidence, the Board did not find any evidence sufficient to mitigate the seriousness of the civil charges of robbery with a deadly weapon. 17. On 29 May 1981, the ADRB answered a complaint from the applicant that the ADRB had not addressed all of his contentions. ADRB case AD80-00006 addressed those contentions. a. His contention that he should have been medically discharged was rejected. There were no military medical records showing that he had medical problems at the time of discharge. He was properly discharged under Army Regulation 635-206 for a civil conviction. b. The Board accepted that fact that the applicant received mental health treatment in civil confinement starting 11 December 1978 but found no evidence of a mental health record or treatment in February 1973 at Fort Hood. c. There was no evidence that the applicant’s commanding officer or a JAG officer promised the applicant a general discharge. d. The Laird Memorandum provisions only applied to persons discharged for drugs on or before 1 July 1971. They did not apply to the applicant, who was discharged on 22 July 1976 due to a civil conviction for aggravated robbery with a deadly weapon. The applicant was likewise not eligible for the Special Discharge Review Program which was focused on Vietnam Veterans with combat service who were discharged before 28 March 1973. The applicant was discharged after this date and did not have combat service. 18. To the various Boards, the applicant submitted medical records from the Texas Department of Corrections for the period 13 June 1975 to 30 November 1978 showing that he: a. Admitted to addiction to heroin at age 19. He claimed to have been in an Army drug rehabilitation program. b. Was referred to the correction facility treatment center for violent behavior and delusions. c. Was diagnosed with acute schizophrenia which was treated with medications and was in remission with no symptoms. d. Experienced relapse into schizophrenia when he failed to take the prescribed medications. c. Was treated for pneumothorax (air or gas in the cavity between the lungs and the chest wall, causing collapse of the lung) and for edema (abnormal accumulation of fluid causing swelling) of the lower extremities. These conditions were treated medically and resolved. 19. To the various Boards, the applicant submitted medical documentation from Polk Mental Health Services for the period 11 December 1978 to 24 March 1981 showing that he was being treated successfully for schizophrenia, paranoid type, to the point that his symptoms were well-controlled with medication and he was successful in attending a local community college and seeking employment. 20. To the various Boards, the applicant submitted selected military medical documentation showing that he was treated from 3 July 1972 to 20 July 1972 at the George Washington Hospital and Walter Reed Hospital for a collapsed left lung that was incurred in the line of duty. The condition was resolved with treatment and he was released back to duty. 21. The Chief, Behavioral Health Division, Office of the Surgeon General (OTSG), reviewed the applicant’s military records and evidence, and provided an opinion. There were no military medical records available. Based on the applicant’s statements, the advisory official opined that the applicant may have been admitted to the Fort Hood Drug and Alcohol Rehabilitation Center for heroin addiction, but there are no military medical records to corroborate this. Based on his mental health records from during his civilian confinement from 13 June 1975 to 30 November 1978, and his mental health records after release from confinement from 11 December 1978 to 24 March 1981, the applicant may have had a behavioral health condition (schizophrenia) which likely fell below retention standards. However, there are no military medical records of behavioral health diagnosis or treatment while in the service. 22. The applicant was provided a copy of this opinion for reply. He has not provided any response. REFERENCES: 1. Army Regulation 635-206, then in effect, stated a Soldier convicted by a civilian court of an offense that under the Uniform Code of Military Justice (UCMJ) would carry a penalty of confinement for more than one year would be discharged with a UOTHC discharge. A general or honorable discharged under these provisions could only be considered if the Soldier has received a personal decoration. The regulation required medical evaluation of Soldiers who were being recommended for separation under the provisions of this regulation and who were under military control. 2. The Manual for Courts-Martial maximum punishment chart shows that under the UCMJ, the punishment for violation of Article 122, robbery committed with a firearm, would be confinement up to 15 years and a dishonorable or bad conduct discharge. 3. Army Regulation 40-501 (Standards of Medical Fitness) defines those conditions that might make a Soldier unfit for retention. Having a disability, medical or psychological condition does not automatically make a Soldier unfit for retention. It would have to be shown that disability, medical or psychological condition, makes the Soldier unable to perform the duties of his or her office or rank in a manner as to reasonably fulfill the purpose of employment in the military service. To be considered for being unfit for retention, a Soldier with pneumothorax (collapsed lung) would have to show repeated episodes of pneumothorax not correctable by surgery. A Soldier with schizophrenia (psychosis) would have to show recurrent psychotic episodes, existing symptoms, or residuals thereof, or a recent history of psychotic reaction sufficient to interfere with performance of duty or with social adjustment. DISCUSSION: 1. The evidence shows the applicant, subsequent to reenlisting, demonstrated a pattern of misconduct that included: * failing to go to his appointed place of duty * sleeping on guard duty * possessing a concealed weapon on a military installation * issuing an insufficient funds check and then attempting to cover it with a credit card that was over the limit * being under investigation for larceny and destruction of property in the company area 2. He was convicted of two separate charges of aggravated robbery with a deadly weapon (a gun) and sentenced by civil authority to 10 years in prison. For this serious misconduct, punishment under the UCMJ could have been confinement up to 15 years and a dishonorable or bad conduct discharge. The evidence shows the characterization of service he received was fully justified by the facts in his case. 2. The applicant contends that his first enlistment, for which he received an honorable discharge, was combined with his second enlistment, for which he received an undesirable discharge, thereby ignoring his honorable period of service. The Army issued two separate discharges for two separate periods, an honorable discharge for the period 24 February to 27 March 1974 and an undesirable (i.e., UOTHC) discharge for the period 28 March 1974 to 22 July 1976. The Army has not combined these two periods into one discharge. It is noted that the VA considered both periods of service together to determine eligibility for unconditional discharge benefits and considered the combined periods discharge as undesirable. The Army has no authority over this VA decision. 3. The applicant contends that he was refused a JAG officer when he was ordered to waive his Miranda rights. The applicant provides no evidence to support this contention nor identifies when this violation of his rights happened. It is noted that throughout his separation process he was represented by a JAG officer and that his separation process was reviewed at many levels, including by the III Corps and Fort Hood SJA. 4. There is no evidence of a disabling condition that would have served as a basis for allowing him to return to the Army for the purpose of disability evaluation after he had served his sentence to confinement. Although the OTSG opined that the applicant may have had an unfitting behavioral health condition (schizophrenia) at the time of his separation, the governing regulation only provided for medical examinations for individuals who were under military control. Because he was confined by civil authorities, there was no requirement that he receive a medical examination in conjunction with his separation processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005254 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005254 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2