BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015247 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 BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015247 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. BOARD DATE: 16 February 2017 DOCKET NUMBER: AR20150015247 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, an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * his ability to serve was impaired by his youth and immaturity * he had psychiatric problems which impaired his ability to serve effectively * he had medical and physical problems which impaired his ability and desire to serve * he should have received a medical discharge because he was not medically qualified to serve * clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge 3. The applicant provides: * a letter he addressed to The Office of the Staff Judge Advocate (SJA), III Corps, Fort Hood, TX, dated 18 April 1972 * his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 June 1972 * his Army separation proceedings * a letter from the Texas Rehabilitative Commission, Austin, TX, dated 28 May 2003 * Physician's Statement from the Dallas County Department of Health and Human Services, dated 6 May 2003 * a medical statement from North Star Behavioral Health, Dallas, TX, dated 30 October 2002 * a medical statement from LifeNet Community Behavioral Healthcare, Dallas, TX, dated 29 October 2002 * a medical statement from Parkland Health and Hospital System, Dallas, TX, undated 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. The applicant was born on 18 July 1953. He enlisted in the Regular Army on 24 September 1970. 3. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on: a. 19 March 1971, for being absent from his place of duty without authority during the periods 4-7 January 1971 and 15 January-11 February 1971; b. 15 April 1971, for being absent from his unit without authority during the period 12-14 April 1971; c. 11 May 1971, for disobeying a lawful order; d. 18 May 1971, for being absent from his unit without authority during the period 16-17 May 1971. 4. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from: * on or about 14 June through on or about 18 July 1971 * on or about 27 July through on or about 5 September 1971 5. The applicant was found guilty by a civilian court on 16 September 1971 of the charge of burglary. He was sentenced to 10 years' probation. 6. The applicant's DA Form 20 shows he was in confinement from 6 September to 14 October 1971 and he was AWOL from on or about 26 October 1971 through on or about 7 February 1972. 7. The applicant's probation was revoked on 6 January 1972. The court cited, as the reasons for the revocation, the applicant's unauthorized absence from his military unit beginning on 28 October 1971 and his willful failure to report to his probation officer. He was ordered to be confined for a period of not less than 2 years nor more than 10 years. 8. The applicant's immediate commander recommended his separation from the Army on 4 April 1972, under the provisions of Army Regulation 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)), with an undesirable discharge. The commander cited, as the reasons for the proposed separation action, the applicant's record of NJP and his civilian conviction and sentence. 9. The applicant, through an official of the Texas Department of Corrections, was notified by his commander that he was being considered for elimination from the Army under the provisions of Army Regulation 635-206 due to his civil conviction with an undesirable discharge. He was advised of his right to request that military counsel be appointed to represent him before a board of officers and to submit a statement in his own behalf. He elected representation by counsel and elected to submit a statement in his own behalf. 10. The applicant submitted a statement on 29 March 1972, wherein he expressed his disagreement with his civil conviction and explained that he went AWOL because he needed a job in order to earn money to pay his probation fee. 11. A board of officers was convened on 18 May 1972 to consider the applicant's discharge under the provisions of Army Regulation 635-206. The board, after considering all evidence, recommended the applicant's discharge from the service with an undesirable discharge. 12. The Fort Hood SJA confirmed on 1 June 1972 that the requirements of Army Regulation 635-206 had been fulfilled. 13. The separation authority approved the Board's findings and conclusions on 1 June 1972 and directed the applicant's discharge and the issuance of an Undesirable Discharge Certificate. 14. The applicant was discharged accordingly on 5 June 1972. His DD Form 214 shows he completed 7 months and 27 days of creditable active service and that he accrued approximately 380 days of lost time. It also shows his service was characterized as under conditions other than honorable. 15. There is no evidence in the applicant's records that shows he was suffering from an unfitting physical or mental condition that could be considered a mitigating factor for the misconduct that led to his discharge. There is also no evidence that indicates he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his discharge. 16. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 17. The applicant provided: a. A letter from him to SJA, III Corps, Fort Hood, TX, dated 18 April 1972, in which he expressed his disagreement with his civil conviction and explained that he went AWOL because he needed a job to earn money so he could pay his probation fee. b. A letter from the Texas Rehabilitative Commission, Austin, TX, dated 28 May 2003, which shows he had a disability claim in-process with that agency. c. A Physician's Statement from the Dallas County Department of Health and Human Services, dated 6 May 2003, which shows he was diagnosed with major depressive disorder (MDD) . d. A medical statement from North Star Behavioral Health, Dallas, TX, dated 30 October 2002, which shows he was seen at that clinic for medication management due to MDD. e. A medical statement from LifeNet Community Behavioral Healthcare, Dallas, TX, dated 29 October 2002, which shows he was seeking treatment for his behavioral health (BH) condition. f. A medical statement from Parkland Health and Hospital System, Dallas, TX, undated, which shows he was diagnosed with peripheral vascular disease. 18. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's psychiatrist. It states: a. The applicant's application, including the medical statements he provided, and his military personnel and medical records were reviewed. b. A review of the documentation from his treating psychiatrist, dated 3 October 2002 and 6 May 2003, indicates the applicant has been diagnosed with MDD, is being treated with medication, and is unable to work due to his psychiatric disorder. c. The are no diagnoses of any BH conditions in the applicant's military records. There is also no indication in his military records that he failed to meet medical retention standards. d. The applicant provided documentation indicating he was diagnosed and treated for MDD in 2002 and 2003; however, a diagnosis of MDD in 2002 and 2003 does not establish the existence of the same disorder in 1970-1972. There is no evidence in his military records that he had any BH conditions, to include MDD, while on active duty. There is no evidence to support his contention that he had BH problems which impaired his ability to serve in the Army effectively. 19. The medical advisory opinion was provided to the applicant to give him the opportunity to submit additional comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-206, in effect at the time of the applicant's service, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). It stated that members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. DISCUSSION: 1. The evidence of record shows the applicant was convicted by a civilian court of burglary and was sentenced to probation for a period of 10 years. He then violated his probation and as a result, his probation was revoked and he was ordered to be confined for a period of not less than 2 years and not more than 10 years. 2. Accordingly, his chain of command initiated separation action against him and he was properly notified. The evidence confirms his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 3. The applicant contends: a. His ability to serve was impaired by his youth and immaturity; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. b. He had psychiatric problems and medical and physical problems that impaired his ability and desire to serve; however, there is no medical evidence that substantiates this contention. c. He should have received a medical discharge because he was not medically qualified to serve; however, his records do not contain evidence that shows he was suffering from an unfitting medical condition during his period of active duty service. 4. During his brief period of service, his record of indiscipline included NJP on four occasions, a conviction by a civil court for burglary, and approximately 380 days of lost time. The characterization of service he received was commensurate with the reason for 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) AR20150015247 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015247 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2