BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150019224 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: 11 May 2017 DOCKET NUMBER: AR20150019224 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: 11 May 2017 DOCKET NUMBER: AR20150019224 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 under other than honorable conditions discharge to an honorable discharge. 2. The applicant states he was 18 years of age and unable to cope with everything he was dealing with. He loves our country and does not want to continue to suffer because of the characterization of his service. He also does not understand how he came into the Army as an E-2 but ended up being an E-1. There is no explanation why he was demoted. He was diagnosed with several mental illnesses that stemmed from the same timeframe he was in the Army. He is 29 years of age now and he wants to, in effect, go to school and improve his life. 3. The applicant provides a receipt for a psychiatric evaluation. 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 was born in October 1986. He enlisted in the U.S. Army Reserve for 8 years in the rank/grade of private/E-1 on 29 December 2005. He was 19 years and 2 months of age at the time. 3. He entered active duty on 6 July 2006 and he was assigned to Fort Lee, VA, for completion of training. Some of his documents listed his rank/grade as private two/E-2 and others listed his rank/grade as private/E-1. He may have been advanced to private/E-2. 4. On 5 December 2006, he departed his unit in an absent without leave (AWOL) status, and on 4 January 2007, he was dropped from the rolls as a deserter. He was apprehended by civil authorities on 2 February 2007 in Dothan, AL, for the civilian charge of burglary. He was confined and ultimately returned to military control on 1 March 2007. 5. On 8 March 2007, court-martial charges were preferred against him for one specification of AWOL from on or about 5 December 2006 to 1 March 2007. 6. On 8 March 2007, the applicant consulted with legal counsel who advised him 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 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 under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood that if his discharge request were approved 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 acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf 7. On 23 March 2007, his commander recommended approval of his request for discharge with the issuance of an Under Other than Honorable Conditions Discharge Certificate. His commander stated the applicant's conduct rendered him triable by a court-martial under circumstances that could lead to a bad conduct or a dishonorable discharge. His discharge was in the best interest of the Army. There was no reason to believe the applicant was at the time of his misconduct mentally defective, abnormal, or deranged. 8. On 28 March 2007, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions discharge. Accordingly, the applicant was discharged on 13 April 2007. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in lieu of trial by court-martial with an under other than honorable conditions characterization of service. He completed 6 months and 12 days of active service during this period with lost time from 5 December 2006 to 18 February 2007. 10. On 9 September 2008, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny his request for a change to the character of service or the narrative reason for separation. 11. He provides a receipt for a psychiatric evaluation. The Case Management Division (CMD) forwarded his medical records and complete separation packet to the Army Review Boards Agency (ARBA) medical advisor/psychologist who rendered an opinion on 26 January 2017. The psychologist stated: a. The applicant was in the Army from 6 July 2006 to 13 April 2007. The applicant was AWOL from 5 December 2006 to 1 March 2007. During his AWOL he was arrested for 3rd degree burglary in Dothan, AL, and returned to the Army after he posted bond on 1 March 2007. He was under threat of a court-martial when he accepted a Chapter 10 discharge in Lieu of Trial by Court-Martial. His service record was brief and undistinguished. A review of the electronic medical record (AHLTA) showed only one visit for health care, and it was to Optometry. He had no behavioral-health diagnoses in AHLTA. The Joint Legacy Viewer in AHLTA showed he has had contact with the VA, and the only relevant “problem” in his VA problem list is homelessness, a problem shown as active as of 19 October 2015. The applicant did provide a bill for a psychiatric evaluation that took place on 4 February 2015. He provided no information about the results of this evaluation. He also had a prior request for an upgrade in his discharged rejected by the ADRB on 9 February 2008. His packet contained insufficient evidence to support any mitigation of his misconduct. b. The applicant’s medical records do NOT at the time of his discharge reasonably support him having had a boardable medical condition for that period, and he met mental-health retention standards. There is insufficient evidence to mitigate the applicant’s misconduct because of a psychiatric condition. c. A review of available documentation did not discover evidence of mental-health considerations that are sufficient to change the character of the discharge in this case. A nexus between the applicant’s misconduct and his mental-health was not discovered. 12. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. DISCUSSION: AR 635-200 sets forth the policy for administrative 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. c. 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. d. 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's record shows he 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 separation process. The characterization of service he received is commensurate with the reason and authority for his discharge. 3. A review by the ARBA psychologist/medical advisor did not yield any evidence that he met the criteria for a behavioral health condition at the time of his separation or that his AWOL was connected to a behavioral health condition. The review concluded there was no nexus between the behavioral health conditions he now claims and the misconduct that led to his discharge. 4. The applicant was 19 years of age at the time of his enlistment and going AWOL. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 5. The applicant enlisted in the rank/grade of private/E-1. Some documents in his service record listed his rank/grade as private two/E-2. Nevertheless, when a Soldier is to be discharged under other than honorable conditions, the convening authority will direct an immediate reduction to the lowest enlisted grade. That is why the applicant's rank/grade is listed as private/E-1 at the time of separation. 6. Based on his AWOL, the applicant's service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019224 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019224 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2