IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160002806 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 December 2017 DOCKET NUMBER: AR20160002806 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. IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160002806 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, that his under other than honorable conditions discharge be upgraded to an honorable discharge by reason of medical disability. 2. The applicant states, in effect, the following: * he was ill even before he joined the Army and was still ill when he was discharged * the Army should have known that he was previously hospitalized for mental health issues and should not have let him join * he has been hospitalized well over 100 times throughout his entire life for mental health issues * he joined the Army in one of his uncontrollable mania states, thinking he could help defend his country * after completing basic and advanced individual training, Airborne school, and the Ranger Indoctrination Program, he started hearing voices again and went absent without leave (AWOL) so he would not hurt anyone * he did see a military doctor at Fort Lewis, WA, before going AWOL; however, he wasn't scheduled to see a psychiatrist until two weeks later * he went AWOL because he was scared that he would not be able to perform his duties in a safe manner 3. The applicant provides no additional evidence in support of his request. 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 completed a DD Form 1966 (Application for Enlistment – Armed Forces of the Unites States) on 20 July 1981, in anticipation of his enlistment in the U.S. Armed Forces. In response to Section IV (Other Background Data), question e (Have you ever been a patient (whether or not formally committed) in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders?), the applicant recorded his initials under the column labeled "NO." He certified with his signature that the information contained within the form was true and complete. 3. The applicant enlisted in the Regular Army on 31 October 1981. Following the completion of his initial entry training, he was awarded military occupational specialty 11B (Infantryman). 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: a. On 12 November 1981, for willfully disobeyed a lawful order from a superior noncommissioned officer at Fort Benning, GA, on or about 9 November 1981. b. On 19 December 1981, for sleeping upon his post while being posted as a sentinel on fireguard at Fort Benning, GA, on or about 16 December 1981. He appealed the decision and on 5 January 1982, his appealed was denied by the appellate authority. 5. The applicant was reported by his unit as AWOL on or about 1 May 1982. He was dropped from the rolls of the Army on or about 31 May 1982. 6. A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), date 10 June 1982, confirms the applicant was apprehended by civil authorities on 10 June 1982 and was confined at the New Bedford, MA, confinement facility pending trial on 17 June 1982. 7. A DA Form 4187 (Personnel Action), dated 21 September 1982, shows the applicant's duty status was changed from dropped from the rolls to present for duty on or about 15 September 1982, and he was assigned to the Personnel Control Facility, Fort Dix, NJ. 8. A DD Form 458 (Charge Sheet), dated 20 September 1992, shows court-martial charges were preferred against the applicant for being AWOL from his organization, Headquarters Company, 2nd Battalion, 75th Infantry Regiment, Fort Lewis, WA, from on or about 1 May through on or about 15 September 1982 (a period of 137 days). 9. The applicant consulted with legal counsel on or about 20 September 1982 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 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: a. He understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. b. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. c. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 10. The appropriate approval authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 11. The applicant was discharged accordingly on 28 October 1982. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows: * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial * his service was characterized as under conditions other than honorable * he had lost time from 1 May 1982 through 14 September 1982 12. The applicant's medical records are not available for review with this case. His available personnel records are void of evidence that shows he was diagnosed with a behavioral health or mental health condition during his period of military service. 13. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 14. The Director, Case Management Division, Army Review Boards Agency (ARBA) sent a letter to the applicant on 28 April 2017, requesting medical documentation in support of the mental health issues he addressed in his application. He did not respond. 15. In the processing of this case, an advisory opinion was obtained on 28 September 2017 from the ARBA Senior Medical Advisor, who opined: a. Documentation reviewed included the applicant's ABCMR application, his military personnel records and the limited review of the VA electronic medical record (Joint Legacy Viewer (JLV)). No military medical records were available for review. No VA medical documentation or civilian medical documentation was provided by the applicant for review. b. Based on a review of his available medical documentation, the applicant met medical retention standards for physical, medical and/or behavioral conditions in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. c. The applicant's medical conditions were duly considered during medical separation processing. d. Based on the information available, the applicant did not have any mitigating medical or behavioral health condition(s) that would support a change to the character or reason for the discharge in this case. 16. A copy of the advisory opinion was forwarded to the applicant on or about 29 September 2017 for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 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 that regulation provides, in pertinent part, 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. 3. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge to an honorable discharge for medical reasons. 2. The available evidence shows the applicant went AWOL and remained AWOL for 137 days before he was apprehended by civil authorities. 3. Subsequent to the applicant's return to military control, court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial. 4. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no indication of procedural errors that would have jeopardized his rights. There is no indication the request was made under coercion or duress. 5. The applicant contends he was hospitalized for mental health issues prior to his entry into the Army and the Army should not have allowed him to enlist. His record contains a DD Form 1966, wherein he initialed the "NO" block in response to the question, "Have you ever been a patient (whether or not formally committed) in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders?" He signed the form, thereby indicating the answers were true and correct on his application for enlistment. 6. The available records are void of documentation that shows he suffered from a behavioral or mental health condition prior to or during his period active duty service. His record shows he went AWOL and, as a result, the separation authority determined his service would be characterized as under other than honorable conditions. 7. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions characterization of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 8. The ARBA Senior Medical Advisor opined that based on the information available for review there is no evidence that indicates the applicant had any mitigating medical or behavioral health conditions that would support a change to his characterization of service or 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) AR20160002806 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002806 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2