IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150011408 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: 8 December 2016 DOCKET NUMBER: AR20150011408 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 AR20140010438, on 5 February 2015. ___________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: 8 December 2016 DOCKET NUMBER: AR20150011408 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 reconsideration of his earlier request for an upgrade of his discharge. He also requests a personal appearance before the Board. 2. The applicant states he has exhausted all other resources. During his military service, he was influenced by a lot of people. His attached mental status evaluation proves his state of mind at the time. He was extremely depressed and suffering from anxiety and low self-esteem. He believes this was going on when he entered the service. He received mental health treatment before and after he was discharged. 3. The applicant provides post-service mental health evaluations, substance abuse counseling, and a psychiatric evaluation. 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 AR20140010438, on 5 February 2015. 2. The applicant submits his post-service mental health and psychiatric evaluations as well his substance abuse counseling reports. This is new evidence that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 30 July 1980 and he held military occupational specialty (MOS) 31L (Wire Systems Installer). 4. On 7 September 1980, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty. 5. Following completion of training, he was assigned to the 35th Signal Brigade, Fort Bragg, NC. He was advanced to specialist four/E-4 on 1 January 1982. 6. On 6 January 1982, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 24 January 1982. 7. On 4 February 1982, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 6 January to 24 January 1982. His punishment consisted of a reduction to E-3, and extra duty and restriction. 8. On 16 February 1982, he again departed his unit in an AWOL status and on 17 March 1982, he was dropped from the rolls as a deserter. 9. He was apprehended by civil authorities at Elizabethtown, NC, on 29 March 1988 and returned to military control. He was assigned to Fort Knox, KY, for disposition of the charges. 10. On 1 April 1988, court-martial charges were preferred against him for one specification of AWOL from on or about 16 February 1982 to on or about 29 March 1988. 11. On 1 April 1988, 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 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 (Personnel Separations – Enlisted Personnel), 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 12. On 12 April 1988, his immediate 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. 13. On 15 April 1988, 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 27 May 1988. 14. 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 1 year, 7 months, and 27 days of active service during this period with lost time from 6 to 23 January 1982 and from 16 February 1982 to 28 March 1988. 15. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. However, on 5 February 2015, the ABCMR denied his petition for an upgrade of his discharge. 16. He provides post-service mental health evaluations, substance abuse counseling, and a psychiatric evaluation. The Board forwarded his medical records and complete separation packet to the Army Review Boards Agency (ARBA) psychiatrist who rendered an opinion on 19 September 2016. The psychiatrist referenced the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Medical Fitness), with revisions, dated 4 August 2011; and AR 635-200, dated 6 September 2011. The psychiatrist stated: a. The ARBA psychiatrist was asked to review this case and determine if he had a boardable behavioral health (BH) condition at the time of his discharge from the Army. Information provided by the applicant and the Board was reviewed to include his application to the ABCMR and his military medical and personnel records. b. A review of his post service medical documentation indicates he was diagnosed with alcohol dependence (diagnosed in medical note dated 21 November 1991) and major depression with psychotic features (diagnosed in medical note dated 3 December 2001). His civilian medical records document inpatient treatment for his alcohol dependence and prescribed medications to treat his depression. c. The applicant's military medical record shows he indicated a history of depression prior to entry in service on his Standard Form 93 (Report of Medical History), dated 9 March 1980. The examining physician followed up and noted in the comment section of the form, "Service member often gets depressed when he has nothing to do." On 12 November 1981, he was referred to psychiatry for assessment of his history of depression as part of the security clearance process. He was evaluated by psychiatry on 3 December 1981. The psychiatrist noted: "depression was sad mood and not clinical depression; states he is happy and satisfied in the Army." He was found to have no psychiatric disorder and was cleared psychiatrically by the psychiatrist. These are the only two BH related notes found in his military medical record. Review of his military personnel records indicates he refused a medical examination for separation on 30 March 1988. d. A review of his records indicates that he met medical retention standards in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. Based on the information available for review at this time, it appears that the applicant had a history of depression which existed prior to service. While in the military, however, there is no indication he suffered from depression or any other mental illness. Based on the documentation currently available, there does not appear to be a nexus between major depression or any other boardable BH condition and the misconduct which led to his separation from the Army. 17. 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: 1. 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 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. 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: 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. Review by the ARBA psychiatrist did not yield any evidence that he met the criteria for a BH condition at the time of his separation or that his AWOL was connected to a BH 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'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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011408 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011408 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2