IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20140020371 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: The applicant defers her request, argument, and evidence to counsel. Additionally, she requests a personal appearance. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier request for an upgrade of her under other than honorable conditions discharge. 2. Counsel states: a. The punishment imposed on the applicant under the Uniform Code of Military Justice (UCMJ) and subsequent discharge with a characterization of service of other than honorable was unreasonably harsh under the circumstances. The punishment imposed has served its intended purpose and the removal/change of these records would serve the best interests of the individual and the United States Army. b. The applicant did not understand that she had a mental illness until the late 1990s when she was hospitalized at Summit Ridge Hospital and formally diagnosed with bipolar disorder. In 1999, she began to receive treatment for bipolar disorder. She has learned in treatment that she likely suffered from this mental illness since adolescence, prior to enlisting in the Army. She admits she self-medicated for her condition, including smoking marijuana, which led to her receiving one of her Article 15s. She is currently receiving treatment and is on medication for her illness. c. Her undiagnosed illness and further exacerbation of the condition with controlled substances led her to make irrational decisions. In the spring of 1988 she was subjected to physical, emotional, and verbal abuse by Specialist (SPC) Me— who habitually and publicly bullied her and intimidated and harassed her. On one occasion he entered her shower in the barracks. Instead of reporting this behavior and seeking help from her chain of command, frightened, confused, and unable to cope, she ran away from the Army, which resulted in absent without leave (AWOL) charges against her. Instead of having the opportunity for someone to recognize and explore the cause of her irrational behavior (using drugs and running away from the Army), she was advised to request a chapter 10 with the potential for an other than honorable discharge in lieu of court-martial. No thought was given at that time to the possibility of an organic reason for her sudden irrational behavior, but in hindsight, she contends that she was suffering from as yet undiagnosed bipolar disorder. d. Her erratic behavior in 1988 was the direct result of her bipolar disorder, and court-martial charges and her subsequent under other than honorable conditions discharge were unreasonably harsh given the mitigating circumstances. Her appeal to this Board is for an upgrade of her discharge to fully honorable to acknowledge her mental illness that caused her to behave in an abnormal way in response to the stressors she was facing. She further contends that had she been correctly diagnosed in 1988, she would have been deemed unfit for military service and likely eligible for a disability rating greater than 30 percent and a permanent medical retirement. 3. Counsel provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders 202-2, assignment to Fort Knox * Orders 7-17, reassignment to the Transition Center * DD Form 4 (Enlistment/Reenlistment Document) * DA Form 2-1 (Personnel Qualification Record) * DD Form 458 (Charge Sheet) * separation packet * post-service civilian medical records and articles about bipolar disorder * post-service college transcripts * certificates of membership in an academic society and a leadership honors organization * letters of support * self-authored affidavit * self-authored statement * previous Record of Proceedings * affidavit of another individual * power of attorney 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 AR20130005571, on 21 November 2013. 2. The applicant provides, through counsel, a new argument and/or documentary evidence which was not previously considered by the Board. This constitutes new evidence and warrants consideration by the Board. 3. The applicant's records show she enlisted in the Regular Army on 23 June 1987. She completed the training requirements and she was awarded military occupational specialty (MOS) 31L (Wire Systems Installer). 4. Following completion of MOS training, she was assigned to Company B, 327th Signal Battalion, Fort Bragg, NC, on or about 10 February 1988. She was awarded or authorized the Army Service Ribbon. 5. She was promoted to private two (PV2)/E-2 on 23 December 1987 and private first class (PFC)/E-3 on 1 May 1988. However, her records show she was reduced to PV2/E-2 on 20 June 1988. Her records also show she received nonjudicial punishment (NJP), on two occasions (failure to repair and use of marijuana). The complete facts and circumstances of the NJP are not available for review with this case. 6. On 10 July 1988, she departed her unit in an AWOL status and on 10 August 1988, she was dropped from the rolls as a deserter. She surrendered to military authorities at Fort Benning, GA on 23 August 1988. 7. Following her return from AWOL, she was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, for administrative actions. 8. On 24 August 1988, court-martial charges were preferred against the applicant for one specification of violating Article 86 of the UCMJ for AWOL from 10 July 1988 to 23 August 1988. 9. On 24 August 1988, the applicant consulted with legal counsel and she was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if her request for discharge in lieu of trial by court-martial were approved, and the procedures and rights available to her. Following consultation with legal counsel, she requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In her request for discharge, she acknowledged: * she was making this request of her own free will and had not been subjected to any coercion whatsoever by any person * she understood by requesting a discharge she was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * she understood if the discharge request was approved, she could be deprived of many or all Army benefits that she could be ineligible for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws * under no circumstances did she desire further rehabilitation or to perform further military service * she elected not to submit a statement on her own behalf 10. On 1 November 1988, the applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 11. On 4 November 1988, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade. On 24 January 1989, the applicant was discharged accordingly. 12. Her DD Form 214 shows she was discharged in the rank/grade of PV1/E-1, under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service. She completed 1 year, 5 months, and 19 days of active service and she had lost time from 10 July to 22 August 1988. 13. There is no indication she petitioned the Army Discharge Review Board for a review of her discharge within that board's 15-year statute of limitations. 14. On 21 November 2014, the ABCMR considered her petition for an upgrade of her discharge but found no error or injustice. The ABCMR denied her request. 15. Counsel provides: a. Post-service medical documents dated in 1999 that show she was admitted to a hospital and underwent mental status evaluations/psychiatric evaluations for skin abrasions from walking outdoors without due concern and dissociative thoughts. She was diagnosed with a bipolar disorder. Counsel also submits articles about this disorder. b. College transcripts from the University of Georgia showing award of a college degree in education in 2013. c. Certificates showing she has been selected as a lifetime member of an academic honor society and as a member of a leadership and honors organization. d. Three letters of support from individuals who knew her at school and/or in college. The authors describe her as a positive, willing, flexible, and mature individual. She is also described as a professional who exhibits a high degree of reliability, responsibility, and dedication. e. Self-authored affidavit and a personal statement in which she acknowledged receiving two Article 15s, one for missing formation and the other for using marijuana. She also stated she has suffered from bipolar disorder since age 16 and she fully understood this disorder when she was diagnosed in 1999. She stated that her marital problems and financial problems triggered this disorder. She has received treatment and continues to use her medications. She wants the Board to upgrade her discharge because if she had known of her disorder, this condition could have warranted disposition through medical channels. She also states that she is an employee of the public school system and has continued her education with a goal of attaining her advanced degree. f. Affidavit from an individual who states he witnessed the applicant's bipolar disorder in 1999. She was hospitalized at the time and she began using medication. He has known her for 24 years and he has witnessed her suffering and/or exhibiting the signs and symptoms of bipolar disorder. 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. It 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. 17. According to the Manual of Courts-Martial, Article 86 of the UCMJ applies to a member who absents herself or remains absent from her unit, organization, or place of duty at which she is required to be at the time prescribed. Such member shall be punished as a court-martial may direct. Unauthorized absence for more than 30 days (duration) is considered aggravated unauthorized absence. The maximum punishment for an unauthorized absence more than 30 days that terminates by the member surrendering to military authorities is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. 18. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant's records show she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. She voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial (emphasis added). All requirements of law and regulation were met, and her rights were fully protected throughout the separation process. Further, her discharge accurately reflects her overall record of service. 3. There is no evidence of record and the applicant/counsel did not provide supporting evidence that shows bipolar disorder caused her to go AWOL in 1988. Likewise, she provides no evidence to substantiate her claim that she was assaulted or harassed by SPC Me— and her record contains no evidence of the alleged assault, harassment, or bullying. 4. Her post-service conduct and achievements are noted and are commended. However, generally, post-service conduct and achievements are an insufficient basis for upgrading a properly-issued discharge. 5. The available evidence clearly shows she went AWOL. Additionally, after she was charged with the offense, she exercised her right to consult with counsel. Her options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge. She voluntarily chose the discharge. Those were choices that she made. 6. On the surface, it appears her punishment for going AWOL for only 44 days was harsh. In reality and contrary to counsel's arguments that the punishment was harsh, the applicant's punishment was not harsh. She had a choice. She could have accepted trial by court-martial if she felt she was innocent of the charges or if she felt there were extenuating circumstances. Instead, she elected the administrative separation. Given the punishment she could have received if she had accepted the court-martial and was convicted of the charge of being AWOL, it appears this administrative action was less severe. 7. Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Her misconduct also renders her service unsatisfactory. Therefore, there is no basis for upgrading the applicant's discharge to either an honorable or a general discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x____ DENY APPLICATION 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 AR20130005571, on 21 November 2013. __________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. ABCMR Record of Proceedings (cont) AR20140020371 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140020371 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1