BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160003508 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: 3 August 2017 DOCKET NUMBER: AR20160003508 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 AR20140009837 on 29 January 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: 3 August 2017 DOCKET NUMBER: AR20160003508 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 conditions discharge. 2. The applicant states he has medical documents from the Pensacola Department of Veterans Affairs (VA) Outpatient Clinic that were not available during the Board’s initial decision. He hopes his new evidence will support his request for an upgrade. He had several hardship tours without the benefit of counseling. He is truly in need of counseling and he is now being treated at the VA clinic. He would also like his case expedited because he has cancer. 3. The applicant provides his VA medical progress notes and problem list. 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 AR20140009837, on 29 January 2015. 2. The applicant provides his VA medical progress notes and VA problem list. This is considered new evidence and warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 16 July 1980 and he held military occupational specialty 51R (Electrician). He was assigned to the 28th Engineering Detachment, Alaska. He was advanced to specialist four (SPC)/pay grade E-4 on 1 April 1982. 4. On 12 August 1982, 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 reduction to E-3, forfeiture of pay and restriction. 5. On 23 August 1982, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of suspended reduction to E-2, forfeiture of pay, extra duty and restriction. 6. On 1 November 1982, he departed his unit in an absent without leave (AWOL) status and on 1 December 1982, he was dropped from Army rolls as a deserter. He returned to military control on 2 March 1983. 7. On 4 March 1983, his command preferred court-martial charges against him for one specification of being AWOL from 1 November 1982 to 2 March 1983. 8. On 9 March 1983, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the 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 voluntarily 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 indicated or acknowledged he understood: a. he was making the request of his own free will and he had not been subjected to any coercion by anyone; b. that if his discharge request was approved, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate; c. that if such discharge 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and d. he elected not to make a statement on his own behalf. 9. On 30 March 1983, the separation authority approved the applicant's request for voluntary discharge in accordance with AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, and directed the issuance of a Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade, if applicable. Accordingly, the applicant was discharged on 11 April 1983. 10. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he received shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with his character of service shown as under other than honorable conditions. This form confirms he completed 2 years, 3 months, and 25 days of active service with lost time from 29 September to 27 October 1982, 28 October 1982, and from 1 November 1982 to 1 March 1983. 11. On 15 November 1996, the Army Discharge Review Board (ADRB) reviewed his discharge finding it proper and equitable. Accordingly, the ADRB denied his petition for an upgrade of his discharge. 12. On 29 January 2015, the ABCMR reviewed his application to upgrade his discharge and denied it. 13. He provides his VA medical progress notes and problem list. His case was forwarded to the Army Review Boards Agency (ARBA) senior medical advisor to determine if any alleged medical condition(s) warranted separation through medical channels or if there were medical condition(s) not considered during medical separation processing. The senior medical advisor rendered an advisory opinion on 30 March 2017. The ARBA medical advisor stated: a. He reviewed a VA problem list printed on 25 January 2016 (provided by the applicant) with the following noted problems: osteoarthritis of the knee, nondependent alcohol abuse in remission, elevated prostate specific antigen, leg length inequality, adjustment disorder with mixed emotional features, tobacco dependence, hypertension, and osteoarthritis of the hip. (1) Mental health outpatient note, dated 20 January 2016, shows treatment for depression and adjustment disorder with antidepressant medication. (2) He reported to his therapist that he had prostate cancer. b. Statement in Support of Claim (VA Form 21-4138), dated 9 March 2016, addressed to ARBA, "I am requesting to have my application expedited because I have been diagnosed with cancer. I have attached a copy of the medical evidence to support my request." The medical advisor also conducted a limited review of the applicant’s VA records through the Joint Legacy Viewer with 19 VA entered problems including anxiety and adjustment disorder, prostate cancer, osteoarthritis in multiple locations, hypertension, and others. Medical conditions noted on the applicant’s problem list were not considered service-connected by the VA. c. The senior medical advisor determined that the available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition(s) existed at the time of the applicant’s military service. There were no medical conditions that failed medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) warranting separation through the Army physical disability evaluation system. There were no behavioral health conditions present at the time of his misconduct and there were no noted behavioral health conditions that could have mitigated the applicant's misconduct (AWOL). The applicant met medical retention standards in accordance with chapter 3 of AR 40-501, and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. d. The applicant’s medical conditions were considered during his separation processing in 1983. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. a. Paragraph 3-7a, 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. b. Paragraph 3-7b, 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. 2. AR 635-40 establishes the Army disability system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 3. AR 40-501 provides medical retention standards and is used by medical evaluation boards to determine which medical conditions will be referred to a physical evaluation board. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board as defined in AR 635-40. The physical evaluation board will make the determination of fitness or unfitness. DISCUSSION: 1. The applicant was charged with the commission of an offense 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. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. According to the medical review, the applicant's medical conditions were considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant did not have mitigating medical or behavioral health conditions that could be attributed to his offense of AWOL which led to his separation from the Army. 3. Based on his overall record of indiscipline, the separation authority believed the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel and that his misconduct rendered his service unsatisfactory. The separation authority did not believe the applicant's service rose 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) AR20160003508 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003508 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2