IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150003355 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: 21 July 2016 DOCKET NUMBER: AR20150003355 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 AR20130015066, dated 7 May 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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150003355 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 correction of his narrative reason for separation from unsatisfactory performance to satisfactory performance and award of the Army Commendation Medal (ARCOM) and Army Achievement Medal (AAM). As a new request, he requests either a hardship discharge or a medical discharge. 2. The applicant states: * he was a corrections officer in Guam * he was hard-working and earned a degree * he was in Junior Reserve Officers' Training Corps in high school * as a sergeant (SGT)/E-5, he scored 100 percent [on a skill qualification test] * he also was a staff sergeant, eligible for promotion * the battalion commander and battalion command sergeant major looked at each other after the battalion commander asked him "Are you sure you want this in your records?"; he (the applicant) answered yes, so that he would not have to go to war * prior to his discharge, he was sick and depressed * he completed 6 years, 2 months (i.e., 4 months), and 28 days of active service * in effect, he acknowledges that his service did not merit a second Army Good Conduct Medal * he was admitted to the Palo Alto Veterans [Hospital] in February 1984 and he was diagnosed with schizoaffective disorder and bipolar disorder, which are considered service-connected disabilities by the Department of Veterans Affairs (VA) * he is taking many medications for his illnesses * he was homeless for a while 3. The applicant provides: * military identification card * VA identification card * Guam driver's license * VA Form 21-4138 (Statement in Support of Claim) 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 AR20130015066, on 7 May 2014. 2. The applicant provides a new argument and a new request which were not previously considered and which now warrant consideration by the Board. 3. The applicant enlisted in the Regular Army (RA) on 22 July 1977. He held military occupational specialty 13B (Cannon Crewmember). He was assigned to 3rd Battalion, 34th Field Artillery, Fort Lewis, WA. 4. On 25 April 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully assaulting another Soldier in the face with his hand. He was reduced to E-3. 5. He was reassigned to Fort Sill, OK and he was promoted to SGT/E-5 on 10 December 1980. He reenlisted in the RA on 25 January 1982. He served as a corrections specialist at the U.S. Army Personnel Confinement Facility. 6. He served in Germany from on or about 24 March 1983 to on or about 19 December 1983. He was assigned to A Battery, 6th Battalion, 10th Field Artillery. 7. On 28 November 1983, his command referred him to the Behavioral Health Clinic for a mental status evaluation because of his inability to function due to numerous problems. His work performance, attitude, and motivation were described as substandard as a noncommissioned officer (NCO). He was also pending disciplinary action. His evaluation states: a. He presented himself as an immature, impulsive individual who tended to blame others for his failure. He appeared to have limited self-insights, minimal coping ability and problem solving skills, and lack of self-discipline. b. Based upon the information provided, he was psychiatrically cleared for any administrative action deemed appropriate by his command. It was believed further rehabilitative efforts would not be successful. The examiner also opined that he did not foresee any significant changes in the applicant's behavior, personal or family problems. He was recommended for discharge due to his unsatisfactory performance. 8. On 1 December 1983, he again accepted NJP for willfully and wrongfully exposing his penis in an indecent manner. He was a reduced to specialist/E-4. 9. On 5 December 1983, the applicant's immediate commander notified him of his intent to initiate separation action against him for unsatisfactory performance under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13. The immediate commander cited the applicant's poor duty performance, failure to complete assigned tasks, and personal problems as the reasons for the notification. The immediate commander recommended the issuance of a general discharge. 10. On 6 December 1983, the applicant acknowledged receipt of his commander's intent to separate him and he consulted with legal counsel. He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He waived consideration of his case by a board of officers or appearance before a board of officers. He also elected not to submit a statement in his behalf and further acknowledged he understood that: * he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade – however, an act of consideration does not mean his discharge would be upgraded 11. On 6 December 1983, he accepted NJP for violation of Article 90 of the UCMJ. His punishment consisted of a reduction to PFC/E-3, a forfeiture of pay, and restriction and extra duty. This NJP is not filed in his records. The immediate commander cited it in the "Recommendation for Elimination" memorandum. 12. On 7 December 1983, the applicant's immediate commander initiated separation action against him for unsatisfactory performance under the provisions of AR 635-200, chapter 13. 13. On 7 December 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the issuance of a General Discharge Certificate. Accordingly, the applicant was discharged on 19 December 1983. 14. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions on 19 December 1983 under the provisions of AR 635-200, chapter 13. He completed a total of 6 years, 4 months, and 28 days of creditable military service. This form shows in: a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) no ARCOM or AAM. b. Item 26 (Separation Code) the entry "JHJ." c. Item 28 (Narrative Reason for Separation), "Unsatisfactory Performance." 15. There is no indication he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations. 16. He provides a VA Form 21-4138 asking the VA to remove him from the fiduciary program. 17. The Board requested and the Office of The Surgeon General (OTSG) provided an advisory opinion on 24 June 2016 in the processing of this case. An OTSG official referenced the Diagnostic and Statistical Manual-5; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. The OTSG official stated: a. The applicant entered active duty on 22 July 1977 and he was discharged on 19 December 1983 under honorable conditions, general in accordance with AR 635-200, chapter 13 (Unsatisfactory Performance). In February 2015, he asked the Board to reconsider its May 2014 denial of his request that the reason for his discharge be changed from "unsatisfactory performance" to "hardship with excellent performance." OTSG was asked "to determine if there is a nexus between the medical information contained in the applicant's records and his supporting documentation and the behaviors that led to the applicant's separation for unsatisfactory performance and if the condition was duly considered during his separation process." This opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time of his service. b. In a psychological evaluation conducted on 28 November 1983, the applicant was described as "immature, impulsive and lacking self-discipline." It was also determined he had no significant psychopathology that would warrant discharge through medical channels. c. With regard to a possible nexus between behavioral health diagnoses and the misconduct that led to his separation, there is no evidence that he met criteria for post-traumatic stress disorder (PTSD) or any other psychiatric disorder while in service. Nor are there subsequent VA records that confirm a PTSD diagnosis. Therefore, OTSG is unable to determine if a behavioral health condition contributed to the applicant's separation. 18. The applicant was provided with a copy of this advisory opinion to allow him an opportunity to submit comments and/or a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 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. Chapter 6 governs separation because of dependency or hardship. It states that a hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. Paragraph 6-3b(1) provides that a married Soldier who becomes a parent by birth, adoption, or marriage (stepparent), and whose child or children under 18 years of age reside within the household, may apply for separation under hardship. The Soldier must submit evidence that the roles of parent and Soldier are incompatible and that they cannot fulfill his or her military obligation without neglecting the child or children. Paragraph 6-3b(2) provides that Soldiers who are sole parents and whose children, under 18 years of age who reside within the household, may apply for a hardship separation. A "sole parent" is defined as a parent who is single by reason of never having been married or is divorced or legally separated and has been awarded child custody by judicial decree or court order or is a widow or widower. 2. AR 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code JHJ is the correct code for Soldiers separating under chapter 13 of AR 635-200 by reason of unsatisfactory performance. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of AR 40-501. 4. Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB). The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 5. AR 600-8-22 (Military Awards) states: a. The ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. b. The AAM is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. 6. Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The unit must be clearly identified, along with the period of assignment and the recommended award. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request. The burden and costs for researching and assembling supporting documentation rest with the applicant. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his inability to function due to numerous problems, substandard duty performance, and numerous instances of misconduct. He did not appear to respond to counseling by his chain of command regarding his responsibility to meet Army standards. 2. It also appears his substandard performance, which demonstrated a lack of self-discipline and lack of motivation, left no other option but to discharge him. Accordingly, his immediate commander initiated separation action against him. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 3. There is no evidence that the applicant had PTSD or any other mental health condition that may have significantly contributed to the unsatisfactory performance for which he was discharged. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 4. With respect to the narrative reason for separation: a. The evidence of record confirms the narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of AR 635-200 due to unsatisfactory performance. b. The only valid narrative reason for separation permitted under the authority and reason for his discharge is "Unsatisfactory Performance" which is correctly shown on his DD Form 214. The applicant was discharged under the appropriate separation authority and he was assigned the appropriate narrative reason for separation. 5. With respect to a hardship discharge, there is insufficient evidence in the applicant's records and the applicant did not provide substantiating evidence that shows he was undergoing a family hardship or that he reported such hardship to his chain of command or solicited help from the support channels available at his installation. 6. With respect to the medical discharge, there is no evidence in the applicant's records and he provides none that shows he was diagnosed by a medical authority with a physical or behavioral health condition that failed Army retention standards and warranted his entry into the disability evaluation system. There is neither a permanent physical profile nor medical documents of any physical or mental conditions. He underwent a mental status evaluation that cleared him for separation. The available evidence shows his service was not interrupted by a medical condition but by his failure to satisfactorily perform as a Soldier. 7. With respect to the requested awards: a. The governing Army regulation states that for personal decorations (which include the ARCOM and AAM) formal recommendations, approval through the chain of command, and announcement in orders are required. There is no evidence showing he was recommended for or awarded the ARCOM or AAM. b. While the available evidence does not support awarding the applicant an ARCOM or AAM, this in no way affects his right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of 10 USC 1130. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003355 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003355 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2