IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150012622 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: 13 December 2016 DOCKET NUMBER: AR20150012622 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 to amend the decision of the ABCMR set forth in Docket Number AC91-11500, dated 27 May 1998. ___________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: 13 December 2016 DOCKET NUMBER: AR20150012622 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC91-11500 on 27 May 1998. Specifically, he requests that his under other than honorable conditions discharge be upgraded to an honorable discharge. As a new issue, he requests a medical discharge. 2. The applicant states: a. He was seeing doctors while he was in the service; therefore, he should have received a medical discharge. He received no counseling and he was railroaded. b. He was coerced into either signing the "chapter 10" or going to jail. He was mistreated, misrepresented, and he was not given a trial or an opportunity to defend his actions. c. When he was in the Army, and as he is now, he was seeing a psychiatrist. His diagnosis of bipolar disorder was never taken into consideration. d. He completed basic and advanced individual training. Afterward, he was stationed in Washington, DC, as a hometown recruiter, which was good. He was there for two months and recruited six people into the Army. He was sent to his first duty station after that. He was trained in military occupational specialty (MOS) 16B (Hercules Missile Crewmember). In Europe, he was trained as a launcher control group operator. He was stationed there for the first two years, where he made the rank/grade of specialist four/E-4. He was sent to Greece each year; he was there to test-fire their missiles both years. He fired "98.5" and he was awarded. It made him very happy to accomplish so much in a short period. e. He was reassigned to Fort Bliss, TX. He spent almost a year in the desert learning the job in MOS 16T (Patriot Missile Crewmember). After all the training, he was promoted to sergeant (SGT)/E-5 and received an award for being one of the first to know the system. He was then sent to the Noncommissioned Officer (NCO) Academy, which he graduated. He had two jobs after the NCO Academy; he became the Equal Opportunity NCO. He had a great career. He had received his first honorable discharge reward. f. He never had any type of disciplinary actions, no letter of reprimand, no Article 15, court-martial, or any type of punishment on his records. He cannot recall anyone by name because this was 17 years ago. He and a few other Soldiers were drinking. As they were leaving a party, a female stopped him and started to discuss a seminar he had given that evening. She disagreed with some of the things he stated in the seminar; she became extremely irrational and verbally aggressive. She violated him physically by spitting in his face so he smacked her. That was his first reaction. He truly and honestly regrets the situation and wishes he had conducted himself better. He was a leader and with that comes responsibility, standards, and expectations to uphold. g. The incident he is speaking of happened at Alpha Battery, 2nd Battalion, 43rd Air Defense Artillery Regiment. He feels he was treated unfairly; he received no counseling, no debriefing, and no options were discussed with him other than to resign from the Army or go to jail. He honestly feels he was discriminated against because his point of view about the situation was not taken into account. He feels he was railroaded. When he joined the Army, he was proud to serve his country no matter what the task was, which is why he always strived for excellence, to put himself in a better position. He wanted to advance in his life and take advantages of the opportunities presented to him from the Army but it was short lived. h. Since being dishonorably discharged, he obtained his commercial driver's license and has a family. He has no criminal record and he has never been in jail. He conducts himself with respect and carries the lessons that he was taught in the Army with him daily to make positive changes in his life and in others around him. He volunteers at his church and at other places in the community to share his experiences with others, to encourage, and to empower. Regardless of what his situation is, he still encourages young men and women to join the Army to see the world and become productive people in society. i. As a veteran of the U.S. Army, he has paid his dues to this country and he deserves the benefits that come along with doing so. He would deeply appreciate it if the Board would take a good look at his situation. He strongly believes there can be a positive resolve if his case if taken seriously and with care. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * three third-party statements of support * Washington, DC Metropolitan Police Department Criminal History Request * his work experience resume * Community Connections, Inc., Intake Assessment and Treatment Plan (46 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 that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC97-11500 on 27 May 1998. 3. The applicant contends he was suffering from bipolar disorder during his active duty service and this condition was never considered. This contention, in addition to his request for a medical discharge, are new issues that were not previously considered by the Board. 4. The applicant enlisted in the Regular Army on 23 January 1980. He extended his initial period of service on 22 September 1982 for an additional eight months. He was promoted to SGT on 3 February 1983, and on 25 April 1983 he reenlisted for a period of three years. 5. On 11 December 1985, court-martial charges were preferred against him for: * disobeying a lawful order issued by the Charge of Quarters Runner * operating a passenger car while drunk * unlawfully striking another Soldier in the face and about her body with a closed fist and slamming her against a wall * unlawfully striking another Soldier in the face and about his body with a closed fist * wrongfully having sexual intercourse with a married woman, not his wife 6. On 7 January 1986, after consulting with legal counsel, 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, due to the charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge. 7. In doing so, he acknowledged he was guilty of at least one of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged that: * he had not been subjected to any coercion whatsoever by any person with respect to his request for discharge * he was advised of the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 8. On 31 January 1986, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 12 February 1986, he was discharged accordingly. 9. There is no evidence in the applicant's available record that shows he had a behavioral health diagnosis while he was serving on active duty that rendered him unfit to perform his military duties and may have contributed to the acts of misconduct that led to his discharge. 10. The Army Discharge Review Board denied his request for an upgrade of his discharge on 7 November 1986. 11. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Clinical Psychologist. The advisory opinion states: a. Civilian medical records, dated 17 October 2012, from Community Connections, Inc., indicate the applicant has a diagnosis of bipolar disorder with depressive symptoms and a history of homelessness and drug use (clean for 7 years). His diagnosis of bipolar disorder was characterized by isolation, hopelessness, irritability, mania, racing thought, poor concentration, excessive spending, and promiscuity. It was indicated that the applicant intermittently received behavioral health treatment, to include use of psychiatric medications. b. The ARBA Clinical Psychologist was asked to determine if there is a nexus between the information/diagnoses contained in the provided documentation and the misconduct that resulted in the applicant's discharge. This opinion is based on the information provided by the Board as the Department of Defense electronic medical record (AHLTA) was not in use at the time of his service. c. Based on a thorough review of available medical records, there is no evidence that the applicant met criteria for a behavioral health condition during his military service or that a medical discharge was warranted. His record is void of the specific facts and circumstances regarding his contention that he was coerced to sign "chapter 10" paperwork. The evidence that is available indicates he willingly requested a discharge in lieu of court-martial and acknowledged understanding the implications involved in receipt of an undesirable discharge, to include being deprived of both Army and VA benefits. d. This observation does not negate his post-service diagnosis of bipolar disorder; however, the presence of potentially untreated bipolar symptoms during his time in service does not explain or directly mitigate his actions leading to an early separation. 12. The advisory opinion was provided to the applicant to give him the opportunity to provide comments or a rebuttal. He did not respond. 13. The applicant provided: a. Three third-party statements of support that attest to his positive post-service conduct and accomplishments. b. A Washington, DC, Metropolitan Police Department Criminal History Request, which shows the applicant does not have a record of arrest as of 28 May 2013. c. A Community Connections, Inc., Intake Assessment and Treatment Plan (46 pages), dated 17 October 2012, which indicates the applicant was diagnosed with bipolar disorder with depressive symptoms. These documents do not show he was suffering from a behavioral health condition during his active duty service. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. 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. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. DISCUSSION: 1. The available evidence shows the applicant was charged with the commission offenses punishable under the UCMJ with a punitive discharge. The record shows that after consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. By requesting discharge, he admitted he was guilty of at least one of the charges against him that authorized the imposition of a bad conduct or dishonorable discharge. 2. The applicant contends that his behavioral health condition was never considered; however, there is no evidence in his available records that suggests he was suffering from a behavioral health condition that warranted special consideration or any other medically unfitting condition that would have required him to be processed for discharge through medical channels. The advising clinical psychologist found no evidence indicating a medical discharge was warranted and further found the presence of potentially untreated bipolar symptoms during his time in service does not explain or directly mitigate his actions that led to an early separation. 3. He also contends that he was coerced into either signing the "chapter 10" or going to jail, that he was mistreated, misrepresented, and that he was not given a trial or an opportunity to defend his actions. However, the evidence clearly shows he was afforded the opportunity to consult with legal counsel and he indicated he was making the request of his own free will and had not been subjected to any coercion by any person. His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations 4. The third-party letters of support were noted; however, his record of indiscipline during his second period of service includes court-martial charges for disobeying a lawful order, operating a passenger car while drunk, unlawfully striking another Soldier in the face and about her body with a closed fist, and slamming her against a wall, unlawfully striking another Soldier in the face and about his body with a closed fist, and wrongfully having sexual intercourse with a married woman, not his wife. Based on the seriousness of his offenses, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service during his second period of service did not support the issuance of an honorable or general discharge by the separation authority at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012622 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012622 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2