IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150012958 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: 11 August 2016 DOCKET NUMBER: AR20150012958 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: 11 August 2016 DOCKET NUMBER: AR20150012958 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 that prior to entering military service he had severe academic problems with reading, writing, and communicating that resulted in failing grades, which adversely affected his self-esteem and self-worth. He also had psychological and mental health problems, which negatively impacted his behavior while on active duty. a. Recruiting officials were aware of his problems during the enlistment process, but they did not include instructions in his enlistment packet for the diagnosis and treatment of his problems. His problems went unidentified and untreated and, as a result, adversely affected his behavior on active duty. b. He had feelings of inferiority in a group setting and this led to his deep depression while on active duty. He self-medicated with drugs, abandoned his post, engaged in physical altercations with noncommissioned officers (NCO), and went absent without leave (AWOL) on two occasions. c. He states he was never diagnosed or treated for his conditions. If he had been appropriately treated, none of his negative behavior would have occurred. d. He adds that he has since attended therapy and obtained his General Education Diploma. e. The applicant requests a personal appearance before the Board. 3. The applicant provides a copy of his self-authored statement to his United States Senator (summarized above). 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. An SF [Standard Form] 93 (Report of Medical History) and SF 88 (Report of Medical Examination) completed on 16 December 1978 document the applicant's entrance medical examination. These forms show: * the applicant – * denied depression or excessive worry * wrote the statement, "I am in good health, no medication." * the examining physician found the applicant qualified for – * enlistment * airborne duty 3. On 8 February 1979, the applicant was administered the Armed Forces Qualification Test (AFQT) at the Armed Forces Entrance and Examination Station, Fort Hamilton, NY. A review of the applicant's ten (10) aptitude area scores shows: * his highest aptitude score was 107 * he scored 90 or higher in nine (9) of the ten (10) aptitude areas * his lowest aptitude score was 84 4. The applicant enlisted and entered active duty in the Regular Army (RA) on 28 February 1979 for a period of 3 years. a. His military personnel records show he attended Hillcrest High School for 2 years (until 1978) and he did not graduate. b. He was awarded military occupational specialty (MOS) 19D (Cavalry Scout). 5. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on four separate occasions, as follows: * on 2 October 1979, for willfully disobeying a lawful order from his superior NCO * on 27 November 1979, for being derelict in the performance of his duties * on 13 December 1979 1980, for – * wrongfully possessing a controlled substance (marijuana) * willfully disobeying a lawful order (breaking restriction) * on 21 January 1980 for – * wrongfully possessing a controlled substance (marijuana) * failing to go to his appointed place of duty * willfully failing to clean his room and common areas 6. His DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost), in pertinent part: * AWOL: 19 January 1982 – 8 March 1982 * Confined by Civil Authorities – * 12 October 1981 – 13 October 1981 * 17 March 1982 – 18 March 1982 * 22 March 1982 – 4 April 1982 7. A Personnel Control Facility (PCF) Interview Sheet shows the applicant was advised of his rights under the UCMJ, Article 31, by the cadre of the PCF. a. The applicant provided the following (written) information: * Why did you go AWOL? "I went AWOL from Fort Hood, Texas. I thought they would send me my discharge." * What action did you take before going AWOL to solve the problem? "I talked to the [platoon] sergeant and others of the company." b. The applicant and a PCF official placed their signature on the document on 8 March 1983. 8. On 8 March 1983, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being absent from his unit from 19 April 1982 to 7 March 1983. 9. On 9 March 1983, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions. c. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws d. He was also advised that he could submit statements in his own behalf; however, he did not elect to submit any statements. e. The applicant and his counsel placed their signatures on the document. f. The applicant also elected not to have a separation medical examination before his discharge. 10. The chain of command recommended approval of his request for discharge with the issuance of an under other than honorable discharge. 11. The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 6 April 1983 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 3 years and 9 days of net active service during this period with a total of 389 days of time lost. 13. A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. REFERENCES: 1. AR 601-210 (RA Army Enlistment Program), in effect at the time, prescribed the eligibility criteria governing enlistment into the RA from civilian life of persons with or without prior service. Chapter 2 (Basic Qualifications for Enlistment in the RA), Table 2-2 (Mental Categories and Eligibility for Enlistment), shows non-prior service, non-high school graduates must score 90 or higher in two or more aptitude areas. 2. AR 635-200, in effect at the time, set forth the basic authority for the 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. 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. b. Chapter 3, 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. c. Chapter 3, 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant requests a personal appearance hearing and an upgrade of his under other than honorable conditions discharge based on disqualifying conditions (i.e., academic and psychological) that were not considered upon his entrance into military service. 2. 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. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. The applicant provides no documentary evidence in support of his contention that he had disqualifying conditions that were not considered upon his entrance into military service. 4. The evidence of record shows the applicant completed a report of medical history for the purpose of entering military service. He denied depression or excessive worry. In addition, in his own handwriting, he acknowledged that he was in good health. a. The examining physician found the applicant qualified for both enlistment in the U.S. Armed Forces and for airborne duty. b. The applicant achieved scores of 90 or higher in nine of the ten AFQT aptitude areas, which qualified him for enlistment in the U.S. Armed Forces. c. He completed training and was awarded MOS 19D. d. The evidence of record refutes the applicant's contentions with respect to having had disqualifying educational, psychological, or mental health conditions that would have prohibited his entrance into the RA. 5. The evidence of record shows that the applicant's request for discharge under the provisions of AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 6. The evidence of record shows that the applicant was charged with and he admitted guilt to being AWOL from 19 April 1982 to 7 March 1983. a. He was reduced to private (E-1). b. He received NJP under Article 15, UCMJ, on four different occasions for misconduct that included disobeying a lawful order (two specifications), being derelict in the performance of his duties, wrongfully possessing a controlled substance (two specifications), and failing to go to his appointed place of duty. c. He had more than 1 year of time lost during the period of service under review. d. The period of military service, during which the applicant committed and was found guilty of serious offenses, does not demonstrate and cannot be categorized as either honorable or under honorable conditions by regulation. 7. The applicant's post-service conduct and achievement was considered. However, the applicant's post-service conduct is not sufficiently mitigating as a basis for upgrading his 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) AR20150012958 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012958 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2