BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150005418 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 BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150005418 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. BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150005418 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 undesirable discharge. 2. The applicant states he should have received an Article 15 instead of being threatened with a court-martial. He suffered a lot of problems when he returned stateside (from Thailand). His right hand was operated on while at Fort Stewart, which resulted in a P-3 profile. The only proof of this is his 30 days of convalescent leave in his pay records. All his medical records, concerning this surgery, were lost. He was a good Soldier while stationed at Fort Knox, KY. He was on a funeral detail and he rode shotgun on helicopter training. This is not the way he wanted his service to end. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * DA Form 20 (Enlisted Qualification Record) * Separation packet 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 (RA) on 1 November 1971 and he held military occupational specialty 71B (Clerk Typist). 3. He was honorably discharged on 29 November 1972 for immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 29 days of active service. 4. He reenlisted in the RA on 30 November 1972. He served in Thailand from 12 March 1973 to 9 March 1974. He was reassigned to Fort Stewart, GA. 5. On 6 February 1975, he departed his Fort Stewart unit in an absent without leave (AWOL) status and on 6 March 1975, his unit dropped him from the rolls as a deserter. On 31 March 1975, he returned to military control. 6. On 10 April 1975, his chain of command preferred court-martial charges against him for one specification of AWOL from 6 February 1975 to 31 March 1975. 7. On 23 April 1975, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged and/or he understood: * he was submitting this request of his own free will and had not been coerced by anyone; he also understood the implications of his request * if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life * he elected to submit a statement in his own behalf 8. In his statement, the applicant stated that he realized by receiving an undesirable discharge he would be losing some of his benefits. He requested his service in a combat zone be taken into consideration for a general discharge instead of an undesirable discharge. 9. On 22 and 28 May 1975 and 2 June 1975, his immediate, intermediate, and senior commanders all recommended approval of the discharge action with the issuance of an undesirable discharge. 10. On 6 June 1975, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade, if applicable, and issue of an Undesirable Discharge Certificate. On 9 June 1975, the applicant was accordingly discharged. 11. The DD Form 214 he was issued shows he was discharged under the provisions of chapter 10 of AR 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge. He completed 2 years, 4 months, and 17 days of net active service this period and he had 53 days of lost time. 12. On 12 April 1976, following a personal appearance, the Army Discharge Review Board (ADRB) reviewed his discharge and listened to his testimony. However, the ADRB determined he was properly and equitably discharged and denied his petition for an upgrade of his discharge. 13. The Board requested the Office of The Surgeon General (OTSG) review his records to determine if there was a nexus between any claimed medical/mental health condition and his misconduct. OTSG rendered an advisory opinion on 13 July 2016. An OTSG official referenced the Diagnostic and Statistical Manual-5th manual; AR 40-501 (Standards of Medical Fitness), revised, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Separations), dated 6 September 2011. The OTSG official stated: a. The applicant was discharged under other than honorable conditions, in lieu of trial by court-martial, on 9 January 1974, in accordance with AR 635-200, Chapter 10. He served in Southwest Asia for one year. b. In March 2015, he requested that the Board change his reason for separation to retirement for length of service. OTSG was asked to determine if applicant's military separation was due to post-traumatic stress disorder (PTSD) or any other behavioral health (BH) condition. This opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time. c. He explained in a letter to the Board dated 10 November 2014 that his position as custodian of classified documents in Thailand exposed him to detailed information regarding ongoing operations in Southeast Asia. When he returned to Fort Stewart as a mail room clerk, he was "confused about the way war was ending and thought more could be done about the MIA issues." When he told his commander that he "couldn't make sense out of what was going on; he was told to "get over it." He noted that when he went AWOL from February to March 1975, he travelled through Florida staying in campgrounds in a tent. d. The absence of behavioral health records during or subsequent to his service prevents OTSG from determining whether or not there was a relationship between a condition and his misconduct. There is no identified stressor that would meet Criterion A for PTSD and there is no information regarding his social or occupational functioning since his discharge. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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 under other than honorable conditions discharge is normally considered appropriate. b. Paragraph 3-7a states 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 c. Paragraph 3-7b states 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. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He 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 his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 2. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. The quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. He correctly received the appropriate character of service, under other than honorable conditions discharge. 3. There is insufficient evidence to support a diagnosis of PTSD or related condition that contributed to his misconduct at the time. His service was interrupted by his AWOL, not by any medical or behavioral health condition. There is insufficient evidence to support a nexus between any medical/mental condition and the misconduct that led to his discharge. 4. Likewise, there is no evidence in the available records and he did not provide any evidence to show he suffered from a medical condition that failed retention standards or rendered him unable to perform the duties required of his former grade and military specialty, or was issued a permanent profile, or was diagnosed with an unfitting condition. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005418 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2