IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150017111 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: 28 June 2016 DOCKET NUMBER: AR20150017111 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 AR20130002333 on 24 September 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: 28 June 2016 DOCKET NUMBER: AR20150017111 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 under other than honorable discharge. 2. The applicant states he was properly diagnosed but improperly treated. He entered the military in February 1979 with the intent of making it a career. He completed basic and advanced training at the top of his class, and he attended airborne school. He was reassigned to the 82nd Airborne Division, Fort Bragg, NC. He completed jungle, cold weather, and desert training, and he earned the Canadian jump wings. He also cross-trained with the Saudi Arabia Army. At that time he did not drink alcohol or use illegal drugs. In preparation for Ranger school, he had a physical examination wherein the doctors discovered a spot on his lung. He was told to move to Arizona where the air is cleaner. This is the point when his life took a spiral downward. He started drinking, hanging out at clubs, and doing illegal drugs. The very marijuana cigarette he was caught with, he bought from a noncommissioned officer on post. The reason he thinks the Board should reconsider his request is that if he had received some type of mental health evaluation it could have determined if there was a medical condition that would explain his actions after receiving such a devastating diagnosis. It was at a family function that others noticed he was no longer the same after entering the Army. 3. The applicant provides: * 1981 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 1986 Department of Veterans Affairs (VA) rating decision * 1987 Post discharge referral for medical care due to lung condition * 2015 Congressional correspondence * 2015 Medical Progress Notes, Tulane Medical Center 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 AR20130002333, on 24 September 2013. 2. The applicant provides medical documents that were not previously reviewed by the Board. 3. The applicant enlisted in the Regular Army for a 3-year term on 28 February 1979. He completed basic combat and advanced individual training as well as the Basic Airborne Course. He held military occupational specialty 36K1P (Tactical Wire Operator). 4. He was assigned to Headquarters and Headquarters Company, 1st Brigade, 82nd Airborne Division, Fort Bragg, NC. He was advanced to private first class/E-3 on 28 February 1980. 5. On 1 December 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of $135 pay and 14 days of extra duty (suspended). 6. On 11 December 1980, the suspension of punishment of 14 days of extra duty that was imposed on 1 December 1980, was vacated and ordered executed. 7. On 18 December 1980, he again accepted NJP under the provisions of Article 15 of the UCMJ for twice being found asleep on guard duty. His punishment consisted of a reduction to E-1 (suspended), a forfeiture of $250 pay (suspended), and extra duty and restriction. 8. On 13 January 1981, the suspension of punishment of reduction to E-1 (suspended) and forfeiture of $250 pay (suspended) that was imposed on 18 December 1980 was vacated and ordered executed. 9. On 24 February 1981, he was tried by a summary court-martial of one specification of wrongfully possessing 11 grams, more or less, of marijuana, and one specification of wrongfully using marijuana. The court found him guilty of the possession specification and sentenced him to a forfeiture of $299 pay and confinement at hard labor for 30 days. 10. The facts and circumstances surrounding his discharge from the Army are not available for review. However, his records contain: a. Orders 105-10, issued by the U.S. Army Retraining Brigade, Fort Riley, KS, on 1 June 1981 ordering his discharge effective 2 June 1981. b. DD Form 214 showing he was discharged on 2 June 1981, with an under other than honorable conditions characterization of service, in accordance with paragraph 14-33b(1) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) due to misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities. He was credited with 2 years, 2 months, and 11 days of active service with lost time from 24 February 1981 to 19 March 1981. 11. On 18 April 1983, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge finding his discharge was both proper and equitable. 12. On 24 September 2013, the ABCMR denied his request for a discharge upgrade. 13. He provides: a. VA rating decision, dated 18 December 1986 showing the VA awarded him service-connection for a lung condition for the purposes of medical care eligibility only. The decision noted that upon his entrance into military service his chest x-ray was normal. At the time of his discharge, x-rays showed bullous emphysema of the right upper lobe. b. Medical progress notes from Tulane Medical Center, dated March and May 2015, describing his medical history, family history, social history, medications, medical assessments, and past/current treatment. These notes show he has a history of emphysema, pneumothorax with chest tube placement, ruptured lumbar disk, colonoscopy with multiple polyps and borderline diabetes. As of 8 May 2015, a medical doctor reported the applicant still smokes cigarettes, uses oxygen, and has a diagnosis of chronic obstructive pulmonary disease with emphysema. He was also diagnosed with obstructive sleep apnea by the Tulane Sleep Center. REFERENCE: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. a. Paragraph 14-33b(1) of the regulation in effect at the time pertained to the discharge of enlisted Soldiers for misconduct – frequent involvements of a discreditable nature with civil or military authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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 complete facts and circumstances surrounding the applicant's discharge are not available for review with this case. However, his records contain a DD Form 214 that shows he was discharged on 2 June 1981, with an under other than honorable conditions characterization of service, in accordance with paragraph 14-33b(1) of AR 635-200 due to misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities. Based on his court-martial conviction history, he had a period of lost time due to confinement. 2. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 3. There is no evidence to establish a nexus between his medical condition and the misconduct that led to his discharge. Neither his medical records nor his separation packet are available for review. Additionally, he has not provided sufficient evidence showing that the misconduct that led to his discharge was caused by a medical condition. In fact, the post-service medical records show he is a smoker and has chronic obstructive pulmonary disease with emphysema. 4. Based on his record of indiscipline, which included two instances of NJP, one court-martial conviction, and a reassignment to the Retraining Brigade, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017111 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017111 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2