IN THE CASE OF:	   

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140003973 


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 correction of his records to show he was honorably discharged for medical reasons.

2.  The applicant states his mental disorder was incurred in or aggravated by his active duty service.  If he had been properly evaluated, he would have been medically discharged.

3.  The applicant provides

* Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim)
* statement from his spouse
* statement from his sister

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 AR20130009803 on 25 February 2014.

2.  The applicant provides three statements attesting to changes in his behavior which were not previously considered by the Board.  As such, they are considered new evidence and warrant consideration at this time.

3.  He enlisted in the Regular Army on 15 January 1980 and entered basic training at Fort Knox, KY, on 25 January 1980.

4.  On 24 April 1980, nonjudicial punishment was imposed against him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command restricting him to the company area on or about 12 April 1980.

5.  He completed basic and advanced individual training and he was awarded military occupational specialty 19E (Armor Crewman) effective 25 April 1980

6.  He was assigned to the 3rd Battalion, 33rd Armor Regiment, in Germany from 16 June 1980 to 10 December 1981.

7.  On 2 September 1980, he was absent without leave (AWOL) and he was dropped from the unit rolls effective 1 October 1980.  He returned to military control on or about 9 October 1980

8.  He was again AWOL from 19 November 1980.  He surrendered to military authorities at Fort Sill, OK, and returned to military control effective 29 December 1980.

9.  A Statement of Option – Medical Examination for Separation/Retirement, dated 6 January 1981, shows he indicated he was not required to undergo a medical examination for separation from active duty.  He understood that his medical records would be reviewed by a physician at the appropriate medical treatment facility if he elected not to undergo a separation examination.  He indicated he did not desire a separation medical examination.

10.  On 6 January 1981, he was given a mental status evaluation.  He was psychiatrically cleared for any administrative action deemed appropriate by his commander.

11.  On 20 January 1981, charges were preferred against him for the aforementioned AWOL periods.

12.  On 21 January 1981, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, based on charges preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He stated:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he was advised of the implications attached to his request
* he acknowledged he was guilty of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation – he had no desire to perform further military service
* he consulted with counsel who fully advised him of the nature of his rights under the UCMJ
* he could be discharged under conditions other than honorable if his request were accepted
* he understood the possible effects of a discharge under other than honorable conditions and as a result –

* he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life

* he understood there was no automatic upgrading or review by any government agency of a less than honorable discharge
* he realized the act of consideration by the Army Discharge Review Board (ADRB) or ABCMR did not imply that his discharge would be upgraded
* he understood his request could be processed if he departed AWOL and he could be discharged even though he was absent
* he elected not to submit statements in his own behalf

13.  On 27 February 1981, the Commanding General, U.S. Army Field Artillery Center and Fort Sill, approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a Discharge Certificate Under Other Than Honorable Conditions.

14.  His DD Form 214 (Certificate of Release or Discharge from Active duty) shows he was discharged under other than honorable conditions on 10 March 1981 under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct triable by court-martial.

15.  There is no evidence showing he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations.

16.  On 25 February 2014 after careful consideration of his request for correction of his records to show he was honorably discharged for medical reasons, the ABCMR determined the overall merits of his case were insufficient as a basis for correction of his military records.  The ABCMR found that contrary to his contentions that his discharge was unjust, the available evidence showed he voluntarily elected discharge in lieu of trial by court-martial.  He had an opportunity to present an explanation for his misconduct relating to a mental disorder before the court-martial authority, but he elected not to do so.  He also elected not to submit statements in his own behalf at that time.  His medical records were void of any evidence that he suffered from a mental, psychological, or medical condition that led to his misconduct.

17.  He provided a self-authored statement wherein he described experiencing episodes of hearing voices and visions during basic training that caused him to fear for his life.  After being forced into the gas chamber, his life was never the same.  That experience caused depression, nightmares, and an overall unstable lifestyle ever since.  Before basic training, he had never experienced symptoms associated with schizophrenia.  He didn't know what was happening to him.  His only recourse was to kill himself or run away.  He chose to run which resulted in his discharge under other than honorable conditions.  He has been running for many years and he needs help to stop running.  He can't go back in time and change his life, but he can live the rest of his life in contentment with medication and therapy.  He was AWOL for 49 days and he was discharged without a mental evaluation.  He was released into the civilian world suffering from a disease incurred during military service that he didn't know how to handle. 

18.  He provided a statement from his spouse wherein she stated he was a sweet, kind, loving man after basic training.  Everything was fine with them until he was reassigned to Germany.  Things were never the same once he returned home.  He suffered from mood swings, he was withdrawn and antisocial, he was always depressed, and he was emotional and uncontrollable.  She believes he was a totally different person after his service in the military.

19.  He provided a statement from his sister wherein she stated things were never the same after he came home from serving in the military.  His family thought he would return to his former behavior after a little time back home, but it never happened.  He was distant and cold, his responses were slow, and he stayed to himself.  Other times he would express bursts of anger.  He eventually began staying away and his family saw very little of him.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

21.  Army Regulation 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 AND CONCLUSIONS:

1.  The applicant contends that he suffered from a mental disorder that was incurred in or aggravated by his active duty service.  He further contends that he would have been medically discharged if he had been properly evaluated.

2.  The evidence shows the applicant demonstrated a history of misconduct involving periods of AWOL which ultimately resulted in court-martial charges against him under the UCMJ.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the under the provisions of Army Regulation 635-200, chapter 10.  His Statement of Option – Medical Examination for Separation/Retirement, dated 6 January 1981, shows he indicated he did not desire a separation medical examination.  His mental status evaluation, dated 6 January 1981, shows he was psychiatrically cleared for any administrative action deemed appropriate by his commander.  His military records contain no evidence that he suffered from a mental disorder or medical condition that would have warranted his separation for disability.

3.  The supporting statements provided by the applicant, his spouse, and his sister were carefully considered.  He claims his basic training experience involving the gas chamber affected his behavior and caused him to run away from the Army.  The evidence shows he completed basic and advanced individual training and he was awarded a military occupational specialty before transferring to Germany.  Although he and his family members contend that he exhibited behavioral differences after his return from military service, there is no evidence linking his post-service behavior to any event that occurred during his military service.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  DENY APPLICATION

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 to amend the decision of the ABCMR set forth in Docket Number AR20130009803, dated 25 February 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.

ABCMR Record of Proceedings (cont)                                         AR20140003973



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ABCMR Record of Proceedings (cont)                                         AR20140003973



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