BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002746 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: 28 September 2017 DOCKET NUMBER: AR20160002746 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 Army Board for Correction of Military Records set forth in Docket Number AR20140021536 on 21 July 2015. _____________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: 28 September 2017 DOCKET NUMBER: AR20160002746 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 previous request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states: a. He was denied his rights during the processing of his discharge. He was in an absent without leave (AWOL) status and surrendered to authorities in Rochester, MN. He was transported to Fort Knox, KY for processing. When he arrived at Fort Knox, he experienced a migraine headache and was not in a right state of mind. He was confused and he was not thinking clearly. He was also experiencing uncontrollable blood sugars. He informed the commanding officer and desk clerk of his (medical) situation and they did not listen to him or do anything about it. When the desk clerk advised him that a statement was required, he stated he was unable to provide a statement since he was confused and not thinking clearly. The desk clerk then advised him to write down what he (desk clerk) said. He stated that was hard to do and the desk clerk stated a statement had to be in his (applicant's) handwriting. b. He advised the desk clerk that he did not want to be discharged from the Army. The desk clerk then advised him that it was just a statement pertaining to his AWOL. He was forced into making statements and signing paperwork that he did not agree with willingly, voluntarily, or in his own behalf. He is very brokenhearted to see that he was taken advantage of. He was made/forced into signing paperwork that he did not agree with. He was not in a right state of mind (and should not have) signed paperwork or agreed with anything. He claims his rights were denied and this is why he is appealing the previous decision. He did not want a discharge from the Army. Presently, he continues to suffer with migraines and diabetes; however, he has better control of these health conditions. 3. The applicant provides his Army Board for Correction of Military Records (ABCMR) denial notification letter and Department of Veterans Affairs (VA) Forms 21-526EZ (Application for Disability Compensation and Related Compensation Benefits, 21-4138 (Statement in Support of Claim), and 21-0958 (Notice of Disagreement). 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 ABMCR in Docket Number AR20140021536 on 21 July 2015. 2. The applicant provides a new argument that warrants consideration by the Board. 3. He enlisted in the Regular Army on 28 June 1978 and he held military occupational specialty 64C (Motor Transportation Operator). 4. He was reported AWOL on 9 November 1978 and he was dropped from the rolls of his organization on 8 December 1978. He surrendered to authorities on 22 January 1979 and was returned to military control. 5. On 29 January 1979, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, Personnel Control Facility, Fort Knox, KY. The applicant was charged with one specification of being AWOL from 9 November 1978 to 22 January 1979. Court-martial charges were preferred against him on the same date. 6. On 30 January 1979, he completed a Standard Form 93 (Record of Medical History) for the purpose of a separation physical examination. He indicated on the form he was in good health and listed his fractured skull (3rd grade) and elbow incidents. He was found qualified for separation. 7. On 31 January 1979, after consulting with counsel, the applicant 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. He acknowledged that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person. He also acknowledged that he had been advised of the implications that were attached to it and that he was guilty of the AWOL charges against him. Further, he acknowledged that he understood he could be discharged under other than honorable conditions, furnished an Under Other Than Honorable Conditions Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected to submit a statement in his own behalf. 8. In a handwritten statement, the applicant stated he was 21 years old and had completed 12 years of high school. He joined the Army to learn a skill and get an education. He was a truck driver. He wanted the chapter 10 discharge for medical reasons. He would not be any good to the Army with his medical troubles. He fractured his skull when he was young and has experienced problems since the injury. He saw doctors and was taking prescribed drugs. He also injured his elbow and was told he would have trouble with his elbow for the remainder of his life. 9. On 13 February 1979, his chain of command recommended approval of his request and the issuance of an under other than honorable conditions discharge. 10. On 21 February 1979, the separation authority approved his request and directed his discharge under other than honorable conditions and reduction to pay grade E-1. 11. He was discharged accordingly on 16 March 1979. His DD Form 214 shows he completed 6 months and 6 days of active service and had 74 days of time lost. 12. On 12 January 1981, the Army Discharge Review Board determined that he was properly discharged and denied his petition for an upgrade of his discharge. 13. He provided multiple VA forms dated in 2015, wherein he stated he was filing a claim for service connection for type II diabetes, skull fracture, migraines with seizure condition, residual scar of the skull fracture, left leg amputation below the knee, right foot condition, heart condition, and a brain tumor. He asserted that he was not diagnosed with these medical conditions prior to his enlistment and that these medical conditions began in military service or were caused by some event or experience in the service. He further requested a discharge upgrade. He did not provide the VA decision document. However, he did provide a notice of disagreement dated December 2015, wherein he disagreed, presumably with the VA decisions concerning his discharge and various medical conditions. REFERENCES: 1. The Manual for Courts-Martial states for Article 86 (AWOL) that a member of the armed forces who, without authority, absents himself or remains absent from his unit, organization or place of duty shall be punished as a court-martial may direct. The maximum punishment for AWOL of more than 30 days included a bad conduct or undesirable discharge, forfeiture of all pay and allowances, and confinement for 1 year. If the AWOL was terminated by apprehension, the confinement period could be 18 months. 2. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. a. Chapter 10 – a member who had committed an offense(s) for which the authorized punishment included a bad conduct or dishonorable discharge could submit a written request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred to the Soldier. Commanders were to ensure that a Soldier was not coerced into submitting a request for discharge for the good of the service. The Soldier after receiving legal counseling, would personally sign a written request, certifying he had been counseled, that he understood his rights to include loss of VA benefits, and that he understood he could receive an under other than honorable conditions discharge and the results of the issuance of such a discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a bad conduct or an undesirable discharge, forfeiture of pay and allowances, and confinement for up to 1 year. 2. After consulting with counsel, he acknowledged in writing that he had been advised of the implications that were attached to it and that he had not been coerced into requesting a discharge. Further, he acknowledged that he understood he could be discharged under other than honorable conditions and the result of the issuance of such a discharge. At the time, he submitted a statement wherein he stated he wanted the chapter 10 discharge for medical reasons, including that he had fractured his skull as a child and injured his right elbow prior to his entrance onto active duty. He did not give an explanation as to why he went AWOL for 74 days. 3. He now asserts he was ill with a migraine and that his blood sugar was low in 1979, thus he was not able to think clearly. He also asserts the desk clerk told him what to write in his own personal statement. He does not provide evidence such as third party statements from his time in service to support these assertions. By writing and signing his personal statement to support his request for discharge, the applicant was attempting to avoid a maximum sentence including confinement. 4. His administrative separation was accomplished in compliance with applicable regulations. The separation authority determined his service, which included 74 days of AWOL, did not rise to the level required for an honorable or a general 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) AR20160002746 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002746 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2