IN THE CASE OF: BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150014609 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: 12 January 2017 DOCKET NUMBER: AR20150014609 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 AR20100018016, on 12 January 2011. ___________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: 12 January 2017 DOCKET NUMBER: AR20150014609 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 for an upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect, it was unknown at the time of his various disciplinary and/or behavioral; however, he was admitted to the hospital at the University of Texas no more than 30 days after his discharge for removal of a brain tumor. He wishes to have his discharge reviewed and upgraded based on the 3 September 2014 Secretary of Defense Memorandum based on mitigating medical reasons. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical document, dated 26 January 1982 (previously available) * Letter from the Army Discharge Review Board (ADRB) (previously reviewed) * Letter, dated 1 March 1982, written to the Red Cross (previously available) * Previous DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) with argument * Request Pertaining to Military Records (previously reviewed) * Letter, dated 14 June 2010, from his second oldest brother (previously provided) 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 AR20100018016 on 12 January 2011. 2. The applicant enlisted in the Regular Army on 28 December 1979 and he held military occupational specialty 63B (Power Generation and Wheel Vehicle Mechanic). 3. On 16 July 1980, at Fort Polk, LA, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing an assault upon another Soldier using a battery syringe full of undiluted sulfuric acid. 4. On 2 September 1980, he departed his unit in an absent without leave (AWOL) status and on 1 October 1980, he was dropped from Army rolls as a deserter. He surrendered to military authorities at Fort Polk, LA on 23 March 1981. 5. On 27 March 1981, court-martial charges were preferred against the applicant for one specification of being AWOL from 2 September 1980 to 23 March 1981. 6. On 27 March 1981, 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 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 (VA) * 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 not to submit a statement in his own behalf 7. On 1 April 1981, his immediate commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. He opined that the applicant had gone AWOL for personal reasons and rehabilitative efforts were considered futile. 8. On 9 April 1981, 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 Under Other Than Honorable Conditions Discharge Certificate. 9. On 20 April 1981, the applicant was accordingly discharged. 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 9 months of net active service and he had lost time from 2 September 1980 to 23 March 1981. 10. On 4 October 1992, the ADRB reviewed his discharge, but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 11. On 12 January 2011, the ABCMR also reviewed his discharge but found insufficient evidence of an error or an injustice. The ABCMR denied his petition for an upgrade of his discharge. 12. On 1 March 2016, a staff member of the Army Review Boards Agency dispatched a letter to the applicant requesting that he provide the supporting medical evidence of a mental health issue, including all service or VA medical records. He did not respond. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 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. 2. All requirements of law and regulation were met and his rights were fully protected throughout the discharge process. He could have also elected trial by a court-martial if he believed there were extenuating circumstances that led to his AWOL offenses. 3. He has not provided any documentary medical evidence to support a mental or behavioral health diagnosis or that there was a nexus between a mental/behavioral health condition and his misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014609 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014609 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2