BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002651 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: 12 September 2017 DOCKET NUMBER: AR20160002651 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: 12 September 2017 DOCKET NUMBER: AR20160002651 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. 2. The applicant states, in effect: a. He never appeared before a court-martial, was never prosecuted by a court-martial, and was never punished. He did not receive legal representation to plead his case. He had a brain tumor, which he believes was the reason for his aggressive behavior. He also believes the tumor was brought on by exposure to Agent Orange. b. He submitted evidence of his brain tumor, which he was never tested for at the time of discharge, and documentation that explains how exposure to Agent Orange can cause these types of tumors and anti-social behavior. 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 January 1980, he completed his initial entry training and was awarded military occupational specialty 63B (Automobile Repairman). 3. The applicant was assigned to Company C, 124th Maintenance Battalion, Fort Hood, TX, on or about 15 May 1980. He was promoted to the rank/grade of private (PV2)/E-2 on 8 July 1980. 4. Special Court-Martial Order Number 1, issued by Headquarters, Support Command, on 30 January 1981, shows the applicant was convicted of: a. Charge 1 – violating Article 90 of the Uniform Code of Military Justice (UCMJ); specifically, assaulting a commissioned officer, on or about 15 October 1980. b. Charge 2 – four specifications of violating Article 91 of the UCMJ; specifically, for disobeying lawful orders, on or about 8 October 1980, 9 October 1980, and 10 October 1980. He was also convicted of assaulting a noncommissioned officer, on or about 15 October 1980 c. Charge 4 – two specifications of violating Article 128 of the UCMJ; specifically, assaulting two military policeman, on or about 29 September 1980. 5. The court sentenced him to confinement at hard labor for 6 months, reduction to the rank/grade of private (PVT)/E-1, and a forfeiture of $75 pay for 6 months. The sentence was adjudged on 13 January 1981 and approved on 30 January 1981. He was subsequently confined in the U.S. Army Retraining Brigade, Fort Riley, KS. 6. On 26 May 1981, the applicant was reassigned to the 513th Maintenance Company, 3rd Armored Calvary Regiment, Fort Bliss, TX. He was again promoted to the rank/grade of PV2/E-2 on 1 September 1981. 7. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 27 October 1981, shows the applicant was found guilty of violating Article 86 of the UCMJ, specifically for being absent without leave (AWOL) from on or about 7 to 13 October 1981. 8. A Standard Form 600 (Chronological Record of Medical Care), dated 20 October 1981, shows the applicant reported to a medical examiner that he was suffering from pain in his ears and headaches due to the earaches. His medical record does not show any entries of exposure to herbicides or Agent Orange during his period of military service. 9. The applicant's unit reported him in an AWOL status on 21 November 1981. He was dropped from the rolls of the Army on 21 December 1981, and was returned to military control on or about 20 April 1982. 10. The applicant declined a separation medical examination on 23 April 1982. 11. A DA Form 458 (Charge Sheet), dated 26 April 1982, shows court-martial charges were preferred against the applicant at the Personnel Control Facility (PCF), Fort Sill, OK, based on his period of AWOL from on or about 21 November 1981 to 20 April 1982. 12. The applicant consulted with legal counsel on 28 April 1982 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 that were 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. 13. 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 acknowledged 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. He declined to make a statement in his behalf. 14. A DA Form 2496-1 (Disposition Form), dated 28 April 1982, shows the applicant received a mental status evaluation and was psychiatrically cleared for administrative action deemed appropriate by his commander. 15. On 11 May 1982, the applicant's commander recommended that he be discharged with service characterized as under other than honorable conditions. 16. On 19 May 1982, the separation authority approved the applicant's request for discharge, under the provisions of chapter 10, Army Regulation 635-200, due conduct triable by court-martial, with service characterized as under other than honorable conditions. 17. The applicant was discharged from the Army on 2 June 1982. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, due to administrative discharge conduct triable by court-martial with the issuance of an under other than honorable conditions discharge. He was reduced to the rank of PV1. 18. The applicant's record is void of evidence that shows he served in an area where he may have been exposed him to Agent Orange during his period of military service. Mail sent to the address the applicant provided has been returned as undeliverable. 19. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: 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. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. He contends he was not afforded the opportunity to seek counsel, and that he believes exposure to Agent Orange caused an undiagnosed brain tumor and his anti-social behavior. 2. After receiving non-judicial punishment, and a special court-martial sentence that included confinement, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge (AWOL). After consulting with counsel, he elected discharge under the provisions of chapter 10, Army Regulation 635-200. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. 3. The applicant's voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200, was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met and his rights were fully protected. There is no indication the applicant’s request was made under coercion or duress. 4. The separation authority determined his overall record of service did not rise to the level required for a general or an honorable discharge. 5. The applicant's records are void of evidence showing he was exposed to toxins that could have caused a medical condition that contributed to 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) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002651 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2