IN THE CASE OF: BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150016449 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: 12 January 2017 DOCKET NUMBER: AR20150016449 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 AR20120012725, on 29 January 2013, and AR20130012254, on 4 March 2014. ______________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: 12 January 2017 DOCKET NUMBER: AR20150016449 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. 2. The applicant states: a. His father was a combat veteran of World War II and he believes his father suffered from post-traumatic stress disorder (PTSD). He would have flashbacks and nightmares from what he went through. He would start drinking and talking about killing women and children and have to eat where there were dead bodies rotting around him. He (the applicant) was scared of him because he felt like his father was a dangerous man. His father would get angry at him for the least little thing, even shooting at him twice as a young child. His mother drank too. She and his father would both get drunk and fight with each other. He grew up around violence and had a hard life. He and his two sisters were sent to foster care for over a year. His oldest sister ended up raising him. He was nervous and depressed a lot and would get anxiety attacks. When he went on active duty in 1995, he thought he would have a better life. He had a girlfriend and newborn daughter to provide for. He set up an allotment as soon as he could to send money back to his girlfriend. b. It took a while before the allotment got started. His girlfriend got mad because the money wasn't coming in to her like she thought it should. She contacted his recruiter who contacted his commander. He was out on field maneuvers at the time. Four training instructors brought him up to the commander there in the field. They screamed and used profanity toward him. He did not know what was going on. He just knew from that point on, his life in the Army was a "living hell." The instructors dogged him all the time because his girlfriend kept calling them and wanting him to get out of the Army. One instructor even kicked him in the side because he said "I was not supporting my family." Not one single person in his chain of command tried to help him. He felt totally alone with nowhere to turn. c. He found out his girlfriend was cheating on him. He became suicidal and just wanted to get out of the Army because he could not take the pressure any more. He started drinking all the time. He did not seek help through mental health because he did not know what to do other than get away from the Army. He went absent without leave (AWOL) during his first week of airborne school and was gone for months. He was crazy with the thought that his girlfriend was with another man and raising their daughter. He had to get her back at any cost. The Army eventually found out where he was and brought him back to Fort Knox, KY. He was court-martialed and discharged under other than honorable conditions. He went back home, but he never got back with his girlfriend. He did pay $500 in child support a month for twenty years because his daughter was in school, only to find out through DNA testing she was not his daughter after all. d. He went into the Army National Guard (ARNG) in 2004 and stayed for 3 years. He then joined the U.S. Army Reserve (USAR) for over 7 years. He received an honorable discharge from both of them. He takes medication for anxiety and depression and he has trouble sleeping. He is unable to hold a job. He receives food stamps and family members help him survive. He has been waiting for years on Social Security Disability and he has no idea when or if he will get anything from them. If the Board would upgrade his discharge, he could get medical help through the Department of Veterans Affairs (VA). 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * personal statement * Riverbend Center for Mental Health Progress Note * post-service civilian medical records 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 ABCMR set forth in Docket Number AR20120012725, on 29 January 2013, and AR20130012254, on 4 March 2014. 2. In view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board in view of his claim to have had behavioral health problems. 3. The applicant enlisted in the Regular Army on 21 November 1995. He was assigned to the 1st Battalion, 507th Infantry, Fort Benning, GA. 4. On 8 April 1996, he departed his unit in an AWOL status and on 9 May 1996, he was dropped from Army rolls as a deserter. He was apprehended by civil authorities in Alabama and placed in a county jail on 2 August 1996. He returned to military control and was assigned to the Personnel Control Facility (PCF), Fort Knox, KY for disposition of his case. 5. On 6 August 1996, he was issued an authorization to proceed to the PCF but failed to comply. He was reported AWOL and dropped from the rolls on that date. He was again apprehended at Sheffield, Alabama, on 8 December 1996 and returned to military control on the same date and place. 6. On 16 December 1996, court-martial charges were preferred against the applicant for two specifications of being AWOL from on or about 8 April to 2 August 1996 and from 6 August to 8 December 1996. 7. On 16 December 1996, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge 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. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to coercion by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement in his own behalf 8. On 11 February 1997, his immediate commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. The immediate commander opined that the applicant's conduct rendered him triable by court-martial under circumstances that could lead to a bad conduct or a dishonorable discharge. His discharge was in the best interests of the Army. 9. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade. 10. The applicant was discharged on 17 April 1997. The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a characterization of service of under other than honorable conditions. This form further confirms he completed 8 months and 27 days of creditable active service and he had lost time from 8 April to 1 August 1996 and 6 August to 7 December 1996. 11. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations. 12. On 21 June 2004, after receiving a waiver, he enlisted in the TNARNG. He held military occupational specialty 52D (Power Generation Equipment Repairer). He was honorably discharged from the ARNG on 16 November 2006 and transferred to the USAR Control Group to complete his remaining service obligation. He was ultimately discharged from the USAR in November 2011. 13. On 29 January 2013 (AR20120012725), the ABCMR denied his petition for an upgrade of his discharge. 14. On 4 March 2014, the ABCMR (AR20130012254) denied his second request (reconsideration) for an upgrade of his discharge (but granted partial relief regarding completion of cavalry scout training). 15. On 26 May 2015 (AR20140018197), the ABCMR granted him relief with respect to adding the Marksman Marksmanship Qualification Badge with Grenade Bar to his DD Form 214. 16. The applicant provides various post-service medical records (mainly Riverbend Center for Mental Health Progress Notes). The Case Management Division of the Army Review Boards Agency forwarded his separation packet as well as the evidence he submitted to the agency psychologist/medical advisor for review. The psychologist rendered an advisory opinion on 1 November 2016 in the processing of this case. He stated: a. The applicant's DD Form 214 indicated a Discharge, Under Other than Honorable Conditions, In Lieu of Trial By Court-Martial on 17 April 1997. He is petitioning for his character of discharge on his DD Form 214 be upgraded. A review consisted of the applicant’s electronic medical record (AHLTA), limited review of VA records through the JLV (Joint Legacy Viewer), applicant’s application and his supplementary material and supporting documents. b. The applicant provided new medical information that shows he was in treatment on 22 September 2015 for Generalized Anxiety Disorder and has a history of depression and insomnia, with no dates of onset included. On 13 February 2015, a CRNP listed Anxiety, Depression, and PTSD status post (s/p) military service, and insomnia, but without dates of onset or evidence for the diagnoses. In support of his current request to improve his discharge, the applicant wrote that he did have symptoms--“depression” and “anxiety attacks”-- that existed prior to service. He argued his symptoms arose from physical and emotional abuse during his childhood. He also said he was suicidal during his training; however, he did not go AWOL “for months” until his first week of Airborne school, which would be after he had already left what he described as an emotionally and physically abusive training environment. His submissions also show a history of very heavy drinking. Despite his self-described psychological difficulties that he alleged date to the period of his misconduct, he subsequently served honorably in both ARNG and USAR. c. In conclusion, the applicant met medical retention standards in accordance with Chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. His medical conditions were duly considered during medical separation processing. A review of the available documentation did not find evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 17. The applicant was provided with a copy of this advisory opinion. He did not respond. REFERENCES: AR 635-200 sets 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. 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. 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. DISCUSSION: 1. The applicant's record shows he was charged with the commission of an offense (being AWOL) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, 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. He was advised of his rights and acknowledged his decision could impact his potential VA benefits. He chose the discharge in lieu of a court-martial that could have adjudged a bad conduct discharge. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 3. The advisory official in this case did not find evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016449 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016449 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2