BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015774 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: 23 February 2017 DOCKET NUMBER: AR20150015774 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 set forth in Docket Number AC83-04227 on 12 July 1983. ____________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: 23 February 2017 DOCKET NUMBER: AR20150015774 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 that was promulgated in Docket Number AC83-04227 on 12 July 1983. Specifically, he requests his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, he was suffering from mental stress as a result of his wife leaving his children unattended in the house when he went to work. He had no one to help care for his two small children and his chain of command would not help so, having no choice, he went absent without leave (AWOL). Due to his mental stress, he should have received treatment rather than being discharged. He still suffers with stress and anxiety and is taking medication. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) for the period ending 26 April 1974 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 December 1980 * extract of his Office of the Secretary of the Army (OSA) Form 172 (Army Discharge Review Board (ADRB) Case Report and Directive), for Docket Number AD81-12052A * memorandum from the ABCMR, addressed to the applicant and dated 3 August 1983, with Docket Number AC83-04227 and auxiliary documents * forty pages of medical documents from the Department of Veterans Affairs (VA) and two civilian medical groups 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. 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 AC83-04227 on 12 July 1983. 3. The applicant provides a new argument and new evidence in the form of a statement and medical documents, wherein he contends he still suffers from stress. This statement and medical documents were not considered by the Board in its initial consideration of his request; therefore, they constitute a new argument and new evidence that will now be considered by the Board. 4. The applicant enlisted in the Georgia Army National Guard (GAARNG) on 15 September 1973 for a period of 6 years. He served in military occupational specialty (MOS) 64C (Motor Transport Operator). The highest rank/grade he attained was private first class (PFC)/E-3. 5. The applicant accrued 14 unexcused absences within in a one year period and was classified as an unsatisfactory participant in the GAARNG. Consequently, he was released from ARNG service on 7 June 1979 and was ordered to involuntary active duty under the authority of National Guard Regulation 600-200 (Enlisted Personnel Management). The NGB Form 22 (National Guard Bureau – Report of Separation and Record of Service) he was issued shows he completed 5 years, 8 months, and 23 days of total service for pay and his service was characterized as under honorable conditions (general). 6. Orders 71-3, issued by Headquarters, First U.S. Army, Fort George G. Meade, Maryland, on 19 April 1979, ordered the applicant to active duty by directing him to report to the U.S. Army Reception Station, Fort Jackson, South Carolina, on 8 June 1979. It further shows he incurred an active duty commitment of 17 months and 5 days with an ultimate assignment to Fort Hood, Texas. 7. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows: a. Item 21 (Time Lost - Section 972, Title 10, United States Code) shows he accumulated 168 days of lost time during the following periods: * 15 April 1980 through 16 April 1980, total 2 days, AWOL * 9 June 1980 through 15 November 1980, total 160 days, AWOL * 16 November 1980 through 21 November 1980, total 6 days, AWOL b. Item 35 (Record of Assignments) shows he was assigned to the 502nd Supply and Transportation Battalion, Fort Hood, Texas, as his first assignment on active duty. 8. The applicant's record contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 24 November 1980, which shows he went AWOL on 9 June 1980, was dropped from the Army rolls, and was apprehended by civilian authorities on or about 24 November 1980 and returned to Fort Gordon, Georgia. 9. His record is void of a separation packet containing the specific facts and circumstances surrounding his discharge process. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for his discharge. 10. The applicant's DD Form 214 shows he was discharged on 30 December 1980 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial, with his service characterized as under other than honorable conditions. He was discharged in the rank/grade of private/E-1 and he was crediting with completing 1 year, 1 month, and 8 days of net active service. He also had 168 days of lost time, of which 9 days were lost subsequent to his normal expiration term of service date. 11. The applicant's record lacks evidence that supports his contention that his chain of command failed to assist him in dealing with his anxiety and stress over his family situation, specifically, his marital and family issues. 12. The applicant petitioned the ADRB for an upgrade of his discharge on two occasions. The ADRB determined he was properly and equitably discharged and denied his requests during a records review on 16 March 1982 and a personal appearance board on 27 December 1982. 13. The applicant provides the following documentation: a. DD Form 214 for the period ending 26 April 1974, which shows he was honorably released from active duty for training and transferred back to his GAARNG unit after completing 4 months and 23 days of total active service. b. An extract (one page) from his ADRB Case Report and Directives, which highlights the applicant's attempt to have his 30 December 1980 under other than honorable conditions discharge upgraded. c. An ABCMR memorandum to the applicant, dated 3 August 1983, with Docket Number AC83-04227 with auxiliary documents, informing the applicant that his case was reviewed and the Board denied his request for an upgrade as it found no evidence of error or injustice with his request. d. Nine medical documents from the Falcon Medical Group, Evans, GA, which shows the applicant was seen from September 2013 to July 2014 for medical issues that included back pain and anxiety, for which medication was prescribed. e. Two medical documents from the Lamar Medical Center, Augusta, Georgia, which show the applicant was seen for the chief complaint of back pain. He was prescribed medication. f. Twenty-nine pages of medical documents (Progress and Radiology Notes) from the Charlie Norwood VA Medical Center, Augusta, Georgia, for visits that occurred during 2015 that address his medical conditions to include hypertension, prostate cancer (surgery and treatment), and back pain. 14. In connection with the processing of this case, an advisory opinion was obtained from an Army Review Board Agency (ARBA) Clinical Psychologist. The advisory opinion states: a. Military records indicate as a result of AWOLs he was discharged as a chapter 10 [under the provisions of Army Regulation 635-200] with an under other than honorable conditions [character of service]. He has made prior requests to have his discharge upgraded, but they were rejected. Neither his records from the time of his misconduct nor evidence from the applicant show that, at the time of his AWOLs, he was in the grip of a mental illness. b. The medical records provided from treatment by a primary-care provider (PCP) in 2015 reference depression and anxiety, but nothing in the records suggest any diagnoses that would mitigate misconduct that occurred during the years of his service. Further, medical exams at the time of discharge show him reporting his health as good and denying psychiatric symptoms. c. He has previously provided a good account of his AWOL. He made clear in previous applications that he was in an unhappy marriage with an unfaithful wife. He had children he was finding it difficult to care for. He went AWOL to care for his children, as his wife either was not or could not; however, he remained AWOL even after he had secured care for his children. Nobody has wished to deny that his marriage and need for children placed him under stress at the time he went AWOL. It does not amount to a mitigating mental-health condition, even though it is true that the applicant is now ill and in difficult circumstances. d. The applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. e. The applicant's medical conditions were not shown to have been ignored at the time of his discharge. A review of available documentation did not find evidence of a mental health condition or conditions supportive of a change to the character of the discharge in this case. A nexus between the applicant's misconduct and a mental-health condition was not discovered. 15. The applicant was provided a copy of the advisory opinion and responded on or about 14 January 2017. He states he rebuts the medical advisory opinion and requests the consideration of mitigating circumstances of his under other than honorable conditions discharge and upgrade it immediately so he can get medical attention from the VA. He provides the following documents: a. A five-page self-authored statement that states in pertinent parts: * he enlisted in 1973 with the intent to make the Army a career * he was stationed at Fort Hood, Texas, without this girlfriend and two small children; he later married and returned to Fort Hood with them * he began to have marital issues as a result of his wife leaving the children home alone * he started to take his children to daycare as a result with the assistance of his platoon sergeant since he did not have a car * he wanted to take his children to his hometown so his relatives could take care of his children in Augusta, GA and requested leave * his chain of command told him no; frustrated and under stress he had no other choice but to leave Fort Hood (go AWOL) to take his children to his parents * his parents unable to care for them he became more stress and depressed and was finally able to find a relative to care for them * the next day he was apprehended by the police for AWOL; upon arrival to Fort Bragg learned he was going to be court-martialed for AWOL * he feels if his chain of command had granted him leave he would have never been AWOL; he begged for help but his no one helped * he states he was depressed and was a mental category III and should have been treated in a mental facility for depression * Army regulations state mood disorders and anxiety were causes for him being sent to a medical board * he doesn't recall receiving a medical exam and would like to have a copy of his paperwork * today, he continues to suffer with depression and anxiety * his mental stress impaired his judgement in going AWOL and did not try to intentionally violate Army regulations * his situation was a temporary one and his chain of command was not willing to help him b. An undated letter of support from his mother, requesting her support in upgrading her son's discharge. She confirms his mental state of worrying about his children's care and his absence from the Army. c. A copy of his DD Form 214, for the period ending 26 April 1974 and the one-page OSA Form 172, which have already been discussed. d. An extract from the internet of an article reference "What is a Level 3 Mental Health Treatment Facility?" e. A photocopy of his medication history from the Falcon Medical Group, Evans, GA. f. A document titled "Excerpt from 'Removing Barriers to Mental Health Services to Veterans'" by the American Public Health Association (APHA). 16. The applicant's record is void of any documentation that shows he had a medical or mental condition that warranted his processing through medical channels at the time of his discharge from active duty. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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. c. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses 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 charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. An under conditions other than honorable characterization of service required reduction to the lowest enlisted grade. 2. Army Regulation 15-185 (ABMCR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends he was treated unfairly, in that he was not allowed leave to take care of his children and therefore, having no choice, he went AWOL. The evidence of record shows he went AWOL on two different occasions for a total of 168 days until he was apprehended by civilian authorities. 2. His record is void of documentation that shows he was treated unfairly or that shows his chain of command was arbitrary or capricious in their actions. 3. The applicant's records are void of the specific facts and circumstances surrounding his discharge. It appears he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10, Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial. 4. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he waived his opportunity to appear before a court-martial. It is also 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. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. Absent evidence to the contrary, regularity must be presumed in this case. 5. He contends he was in a poor mental state when he went AWOL, still suffers from depression and anxiety, and needs an upgrade of his discharge in order to seek VA medical assistance. However, he provides 29 pages of VA medical documents that show he had medical appointments with the VA in Augusta, Georgia, addressing his medical conditions of hypertension, prostate cancer, and back pain. 6. He does provide additional civilian medical documents that discuss his condition of anxiety and back pain but these documents, with dates starting in 2013, were created many years after his discharge from the Army. The advisory opinion concludes that a review of his available medical documentation did not reveal a mental health condition or other condition that would have failed to meet medical retention standards in accordance with governing regulations and, therefore, a nexus between the applicant's misconduct and a mental-health condition was not discovered. As such, the evidence does not support a change to the characterization of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015774 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015774 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2