IN THE CASE OF: BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150013546 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 September 2016 DOCKET NUMBER: AR20150013546 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 to amend the decision of the Army Board for Correction of Military Records as set forth in Docket Number AR20090007440 on 17 September 2009. __________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 September 2016 DOCKET NUMBER: AR20150013546 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 the previous Army Board for Correction of Military Records (ABCMR) decision set forth in Docket Number AR20090007440 on 17 September 2009. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) discharge. 2. As a new argument, the applicant states his mental illness was not properly diagnosed by the military. He was going to be offered a medical discharge with no benefits. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090007440 on 17 September 2009. 2. The applicant did not provide new evidence in this case; however, he provides a new argument that was not previously considered by the Board. Therefore, this new argument warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 17 August 1976. 4. He accepted non-judicial punishment (NJP) on 19 May 1977, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 23 April through on or about 25 April 1977. 5. On 31 August 1977, he was found guilty by special court-martial of: a. Two specifications of willfully disobeying a lawful order on or about 13 May 1977 and 24 May 1977. b. A single specification of failing to obey a lawful order on or about 4 June 1977. c. A single specification of unlawfully entry on or about 4 June 1977. d. His sentence included forfeiture of $245.00 per month for 4 months, confinement at hard labor for 3 months, and a bad conduct discharge. 6. On 10 March 1978, the United States Army Court of Military Review set aside the special court-martial action taken by the Commander, 5th Infantry Division, Fort Polk, Louisiana, in Special Court-Martial Order Number 27, dated 29 November 1977. 7. It appears the applicant requested discharge for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). His corresponding request is not available for review; however, on 20 October 1978, the special court-martial convening authority dismissed the charges against him and indicated his discharge request under chapter 10 of Army Regulation 635-200 was approved on 14 June 1978. 8. On 5 July 1978, the applicant was discharged for the good of the service under the provisions of chapter 10 of Army Regulation 635-200. The DD Form 214 he was issued shows he was given an UOTHC character of service. 9. On 31 March 1980, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his UOTHC discharge. After careful consideration, the ADRB determined the reason for his discharge and the character of his service were both proper and equitable and voted to deny relief. 10. The applicant's record is void of documentation that shows, and he failed to provide documentation that shows, he suffered from a mental health condition while on active duty, he was diagnosed with a mental health condition at the time of his discharge, or he currently suffers from a mental health condition. 11. On 17 September 2015, the processing of this case was suspended while the applicant was provided 90 days to submit evidence to substantiate a claim of mental health diagnoses; however, he did not respond. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A UOTHC (i.e., undesirable) discharge was normally considered appropriate. DISCUSSION: 1. The evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL. He was later convicted by special court-martial of numerous violations of the UCMJ, which were later set-aside. Eventually, his request for discharge from the Army under the provisions of chapter 10 of Army Regulation 635-200 was approved and he was discharged from the Army with a UOTHC character of service. 2. There is no evidence he was diagnosed with any mental or behavioral health deficiency during his period of active service or that such a deficiency contributed to the misconduct that led to his discharge. 3. Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and does not support an upgrade of his discharge now. 4. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013546 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013546 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2