IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015971 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: 2 March 2017 DOCKET NUMBER: AR20150015971 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: 2 March 2017 DOCKET NUMBER: AR20150015971 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, that his under other than honorable conditions discharge be upgraded to an honorable discharge, by reason of medical disability. 2. The applicant states, in effect: a. He was a young, newly married Soldier with his first child, taking on the pressure of providing for his family while being a good husband and Soldier. He was working long hours (in military occupational specialty (MOS) 94B (Food Service Specialist) and taking care of home, with the extra added stress of a mother-in-law and his wife's two younger siblings staying at their home. He was 20 years old carrying the entire world on his back. b. He sacrificed his military career so his wife's career wouldn't be effected by their hardships. Operations Desert Storm and Desert Shield broke out, and that made things worse. He sought help from his chain of command but they were no help at all. c. He sought help from a doctor at Womack Army Hospital, Fort Bragg, NC. The doctor evaluated him and recommended a medical discharge because of his mental and emotional state. The hospital contacted his wife to take him home because she was still on duty at the hospital. The medical evaluation never made it to his unit and he was embarrassed and cast out of his unit. d. He contemplated suicide many days before he walked away from the Army. If he could go back for a second chance, he would serve his country and his Army even prouder than before. He wasn't a bad Soldier; he made a bad decision, he should have pushed harder for help instead of giving up. 3. The applicant provides no additional evidence in support of his request. 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 8 September 1989, at 20 years of age. He entered active duty, completed his initial entry training, and was awarded MOS 94B. 3. A DA Form 4187 (Personnel Action), dated 5 September 1990, shows his duty status was changed from present for duty to absent without leave (AWOL), effect 30 August 1990. 4. A DA Form 4187, dated 30 September 1990, shows his duty status was changed from AWOL to dropped from Army rolls on 30 September 1990. 5. A DA Form 4187, dated 20 November 1992, shows his duty status was changed from dropped from Army rolls to attached/present for duty, effective 14 November 1992. He was apprehended by civilian authorities and returned to military control on 14 November 1992. He was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Law Enforcement Command, Fort Knox, KY. 6. The applicant signed a Medical Examination for Separation – Statement of Option on 19 November 1992. This statement shows the applicant did not desire a separation medical examination. 7. A DA Form 458 (Charge Sheet), dated 25 November 1992, shows court-martial charges were preferred against the applicant for being AWOL from his unit from on or about: * 15 June 1990 through 28 June 1990 * 11 July 1990 through 2 August 1990 * 10 August through 13 August 1990 * 30 August 1990 through 14 November 1992 8. The applicant consulted with legal counsel on 25 November 1992 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 procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He indicated he had been advised of the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he may submit statements in his behalf. He did not submit any statements with his request for discharge in lieu of trial by court-martial. 9. The applicant's immediate commander recommended his discharge on 2 December 1992, for the good of the service, and recommended the applicant receive an under other than honorable conditions characterization of service. The applicant's battalion commander recommended approval of his voluntary request for discharge on 2 December 1992 and recommended the applicant receive an under other than honorable conditions characterization of service. 10. The separation authority approved the applicant's request for discharge on 17 December 1992, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 11. The applicant was discharged from the Army on 11 January 1993. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was under other than honorable conditions. He served on active duty for 1 year and 11 days and he had 47 days of lost time. 12. The applicant's medical records are not available for review and his available personnel records are void of any documentation that shows he suffered from, or was treated for, any medical conditions at the time of his separation that may have rendered him medically unfit to perform his duties within the scope of his grade and specialty. 13. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 14. In the processing of this case, an advisory opinion was obtained on 28 December 2016, from an Army Review Boards Agency (ARBA) Clinical Psychiatrist, who was asked to determine if the applicant's military separation was due to a diagnosis of post-traumatic stress disorder (PTSD) or another behavioral health condition. The advisory official noted and opined: a. No military medical records are available for review. No civilian or VA medical documentation was provided by the applicant for review. The electronic military medical record was reviewed; however, it contained no medical information regarding the applicant as it was in limited use during the applicant's time in service. b. In the applicant's personal statement, he indicates that he was seen by a doctor at Ft. Bragg who recommended he receive a medical discharge because of his "mental and emotional state." According to the letter, the medical evaluation "never made it to my unit and I was embarrassed and cast out by my unit." The applicant states he became depressed and suicidal and ended up "walking away" from the Army. c. No civilian or VA medical documentation was provided for review. No military medical records are available for review. d. During a review of the applicant’s military personnel record no documentation of any behavioral health conditions were found. There is no evidence in his military record that shows he failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. e. In conclusion, based on the information available at this time, there is insufficient evidence to support the applicant's contention that his misconduct (being AWOL) was due to a behavioral health condition. The applicant has provided no medical documents which substantiate his claim of depression and suicidality leading to his "walking away" from the Army. 15. The applicant was provided a copy of this advisory opinion on 28 December 2016, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. This regulation provides that: a. The medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. b. An enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions. DISCUSSION: 1. The applicant requests correction of his DD Form 214 to show an upgraded characterization of service, from under other than honorable conditions to honorable, by reason of medical disability. 2. Following a lengthy period of AWOL, the applicant was apprehended, returned to military control, and was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. 3. The applicant contends his medical condition contributed to his reason for discharge. His medical records are not available for review in this case and the evidence of record does not show he sustained an injury or illness that warranted his entry into the PDES. In addition, since he was charged with an offense that could have imposed a punitive discharge, he was, by regulation, not eligible for entry into the PDES. 4. The applicant contends his discharge should be upgraded because he was young and had the world on his shoulders. He cites Operations Desert Shield and Desert Storm as an additional source of his stress. He contends he was depressed and suicidal and sought assistance from his chain of command; however, he did not receive help from his chain of command. He also contends a doctor evaluated him and recommended he receive a medical discharge; however, there is no medical record available to support this contention. 5. The applicant did not provide military or civilian medical documents that discuss his mental state at his time of discharge from the Army. The advisory opinion concludes that there is insufficient evidence to support the applicant's contention that his misconduct was due to a behavioral health condition. 6. The applicant voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge. The separation authority determined his overall record of service did not rise to the level required for either an under honorable conditions (general) or honorable discharge. 7. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015971 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2