IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150010534 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: 26 July 2016 DOCKET NUMBER: AR20150010534 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: 26 July 2016 DOCKET NUMBER: AR20150010534 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, reconsideration of his previous request for an upgrade of his discharge. He also requests, in effect, correction of his records to show the reason and authority for his discharge was due to a medical condition (sleep apnea). 2. The applicant states, in effect: a. he went absent without leave (AWOL) after he hit a sergeant for waking him up repeatedly at 3:30 in the morning for snoring; b. when he was called to the orderly room by the captain, he was told he was going to receive nonjudicial punishment or be court-martialed, be confined, and (have his pay) suspended for 6 months. c. he believes he was treated unjustly as he was never provided legal advice and he was not provided an opportunity to explain what happened. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty), dated 21 March 1975 (two copies) * Former Spouse's Statement, dated 14 May 2012 * Former Service Member's Statement, dated 16 May 2012 * VA Form 21-4138 (Department of Veterans Affairs (VA) Statement in Support of Claim), dated 7 September 2010 * Letter, from the Sheriff, Marion County, SC, dated 9 June 2015 * Marion Regional Hospital Polysomnography Reports, dated 1 August and 12 July 2012 (three copies) * Army Board for Correction of Military Records (ABCMR) Letter, dated 18 May 2011 * DD Form 149 (Application for Correction of Military Records), dated 9 February 2011 and 9 June 2015 * ABCMR Memorandum of Consideration, dated 24 December 1994 * VA Form 21-4138, dated 14 October 2015 * Self-authored statements (undated) (three) * Army Review Boards Agency Letter, dated 7 October 2015 * Sleep Disorders Testing and Therapeutic Intervention * Notes for Sleep Apnea Condition (undated) 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 ABCMR in Docket Number AC97-10373 on 24 December 1997. 2. The applicant does not meet the criteria for a request for reconsideration in that his request was submitted more than one year from the date of the previous Board decision. However, he provides statements of support which are considered new evidence and which will be considered at this time. 3. The applicant enlisted in the Regular Army on 22 February 1973. He completed training as a field artillery crewman. 4. Nonjudicial punishment was imposed against the applicant on 3 August 1973, for failure to go to his appointed place of duty. 5. The applicant went absent without leave (AWOL) on 16 August 1974 and he was dropped from Army rolls as a deserter in September 1974. However, on 27 January 1975, he surrendered to civil authorities and he was returned to military control. 6. On 11 February 1975, the applicant underwent a medical examination and his Report of Medical History shows his health was good. He was found to be qualified for separation under the provisions of Army Regulation 635-200, chapter 10. 7. On 11 February 1975, the applicant was notified that charges were pending against him for being AWOL from 16 August 1974 until 27 January 1975. 8. On 14 February 1975, the applicant acknowledged receipt of the notification. After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged he understood: * if his request for discharge were accepted, he could be discharged under other than honorable conditions and be furnished an undesirable discharge * he would be deprived of many or all Army benefits as a result of the issuance of such a discharge * 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 * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 9. In a statement, dated 14 February 1975, the applicant indicated he requested a discharge because of problems he was having with his commanding officer and the first sergeant. He stated: a. He injured his left shoulder during a jump, he was placed on a 10 pound physical profile, and he took pain pills. b. The pills made him sleep a lot which created problems and his promotion was held up for approximately 4 or 5 months, so he got fed up with it and left. c. Before he went AWOL the girl he was going to marry "broke up" with him and he ended up marrying a girl he hardly knew because she was pregnant. 10. The appropriate authority approved his request for discharge on 3 March 1975 and directed the issuance of an undesirable discharge. 11. On 21 March 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. His DD Form 214 shows he completed 1 year, 6 months, and 16 days of net active service this period. He received undesirable discharge. 12. A review of the available records fails to show the applicant was suffering from any unfitting medical conditions while he was in the Army. 13. The available evidence does not show the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 14. On 18 May 2011, the ABCMR denied the applicant’s request for reconsideration of his 24 December 1997 case, because his request was not received within 1 year of the ABCMR’s original decision and he provided no evidence to support his claim of sleep related problems. 15. The applicant provides the following: * statement from his former spouse who indicates the applicant suffered from sleep apnea throughout their entire marriage * statement from a former service member attesting to the applicant’s loud snoring while he was in the Army * letter from the Marion County Sheriff attesting that the applicant has been a Marion County resident since 2010, he has demonstrated good conduct, has been hardworking, and enthusiastic * Marion Regional Hospital Polysomnography Reports, dated 12 July 2012 and 1 August 2012, showing the applicant’s diagnosis of obstructive sleep apnea 16. The applicant also provides nine emails addressed to the Army Review Boards Agency (ARBA) referencing two automobile accidents that occurred as a result of the applicant falling asleep. During one of the accidents the applicant was thrown from the moving car and remained in a coma 2 1/2 months. These emails also describe the injuries the applicant contends he incurred due to the accidents. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states 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, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 15-185 sets forth procedures for processing requests for correction of military records. Paragraph 2-15b governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR’s original decision and it has not previously been considered. DISCUSSION: 1. The applicant's request for an upgrade of his discharge and a change of his reason and authority for separation has been considered along with all of his supporting evidence. 2. However, his records show that he was AWOL from 16 August 1974 to 27 January 1975. He submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. His records show that he consulted with counsel and acknowledged he understood the effects of a less than honorable discharge. The appropriate authority approved the request for discharge and directed the issuance of an Undesirable discharge Certificate. 3. Although he contends he suffered from sleep apnea while he was in the Army, a review of his records fails to reveal that he had any medically unfitting conditions while he was in the Army. According to the applicable regulation, for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. The applicant underwent a medical examination and his Report of Medical History shows his health was good. He was found to be qualified for separation under the provisions of Army Regulation 635-200, chapter 10. 5. The applicant has not shown error or injustice in the action taken by the Army in his case. The type of discharge he received and the reason therefore were appropriate considering all the facts of the case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010534 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010534 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2