IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150003923 


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 request for an upgrade of the character of his discharge.

2.  The applicant states that prior to service he was beaten for complaining about nose and jaw pain.  When he turned 16 he was forced to take the military entrance tests or he would be put out on the street.  He was hospitalized at Fort Leonard Wood.  After service he had surgery for temporal-mandible joint (TMJ) pain and had a tumor removed that cleared up his chronic sinus infections.  He is on Social Security Disability as a result of these problems and his mental illness that started before he entered service.

3.  The applicant provides a November 1994 medical treatment record for a jaw tumor and his prior DD Form 149 (Application for Correction of Military Record).

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 AR20130021972, on 5 August 2014.

2.  The applicant served on active duty 17 September 1980 through 9 April 1981. He did not complete his advanced individual training or receive a military occupational specialty (MOS).

3.  He accepted nonjudicial punishment (NJP) on:

* 13 January 1981, for failing to go at the time prescribed to his appointed place of duty
* 2 March 1981, for failing to go at the time prescribed to his appointed place of duty and being absent without leave (AWOL) for two periods, 
15 -20 January 1981 and 30 January - 25 February 1981

4.  On 24 March 1981, court-martial charges were preferred against him for:

* failure to go at the time prescribed to his appointed place of duty 
* three specifications of stealing from other Soldiers 
* two specifications of wrongfully and willfully damaging other Soldiers' 
property
* stealing from the Army and Air Force Exchange Service 
* willfully damaging military property
* theft of military property
* breaking restriction

5.  On 26 March 1981, the applicant requested separation 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.  The discharge authority approved the request for discharge and directed the applicant receive an under other than honorable conditions discharge.

6.  On 9 April 1981, the applicant was discharged under Army Regulation
 635-200, chapter 10, with a UOTHC.  He had 5 months and 23 days of net active service this period with 29 days of lost time.

7.  A medical questionnaire completed by the applicant at the time of enlistment shows no complaints of any mental or physical concerns except for an eye condition requiring his wearing glasses.  The available service medical records do not show any complaint or treatment for any mental or physical condition during his period of active service 

8.  On 5 August 2014, the ABCMR denied the applicant's upgrade request indicating there was no evidence in his available military records substantiating his contention that mental illness was the proximate cause of his repeated acts of misconduct.



9.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment.  

	b.  An honorable discharge (HD) is a separation with honor.  The 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. 

	c.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

10.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  It states that:

	a.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  

	b.  The ABCMR will decide cases based on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	c.  A reconsideration of a Board decision will be made when additional evidence or other matters including, but not limited to, factual allegations or arguments that were not previously available to the Board have been submitted.

DISCUSSION AND CONCLUSIONS:

1.  The medical treatment record for a jaw condition appears to be new evidence warranting additional Board review.

2.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.
3.  The medical treatment record provided shows a post-service evaluation for TMJ pain and a possible tumor but the treatment did not occur until 13 years after his release from active duty.  As there is no indication of a jaw problem while on active duty, this evidence does not demonstrate a mitigating factor to weigh against his misconduct.

4.  By the applicant's own statements, his mental and physical problems had their onset either prior to or after his period of service.  There is no evidence that any mental or physical disability was the cause of the applicant's misconduct.

5.  The evidence provided does not demonstrate an error in the prior decisional document and is insufficient to demonstrate that any preexisting mental or physical disability was aggravated by his period of service or was a contributing factor in the misconduct that led to his discharge. 

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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR AR20130021972, dated 5 August 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)                                         AR20150003923



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ABCMR Record of Proceedings (cont)                                         AR20150003923



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