IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004601 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: 4 August 2016 DOCKET NUMBER: AR20150004601 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 AR2003094913, dated 25 March 2004. _____________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: 4 August 2016 DOCKET NUMBER: AR20150004601 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 general, under honorable conditions discharge to honorable based on a diagnosis of post-traumatic stress disorder (PTSD). 2. The applicant states, in effect, he suffers from PTSD. 3. The applicant provides: a. various documents from Suncoast Center for Community Mental Health, including – * authorization form * Closing/Discharge Summary * Initial Bio-Psychological Evaluation * Treatment Plan/Treatment Plan Review * Psychiatric Evaluation/Mental Status Examination * Substance Abuse Treatment Plan Review * Clinical Progress Notes * Mental Health Treatment Plan b. his separation packet and DD Form 214 (Report of Separation from Active Duty). 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 AR2003094913, dated 25 March 2004. 2. In view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 30 September 1968. He was trained in and held military occupational specialty 05B (Radio/Telephone Operator). 4. On 20 February 1969, while still in training at Fort Knox, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to duty. 5. On 21 March 1969, also while still in training, he was convicted by a special court-martial of one specification each of: * failing to go at the prescribed time to his appointed place of duty * behaving with disrespect toward a commissioned officer * offering violence against a commissioned officer * being disrespectful in language against a commissioned officer * assaulting the first sergeant 6. The court found him guilty and sentenced him to confinement at hard labor for 5 months and a forfeiture of pay. The convening authority approved the sentence on 21 March 1969. 7. Following his confinement, he was reassigned to a signal unit at Fort Meade, MD. While there, he accepted NJP under the provisions of Article 15, UCMJ, on/for: * 6 August 1969, failing to go at the prescribed time to his appointed place of duty * 9 December 1969, being absent without leave (AWOL) from 10 to 17 November 1969 and 1 to 3 December 1969, and twice failing to go at the prescribed time to his appointed place of duty 8. He was placed on assignment instructions to Germany via the Overseas Replacement Station at Fort Dix, NJ. While there, he again accepted NJP under provisions of Article 15 of the UCMJ for being AWOL from 26 January 1970 to 18 February 1970. 9. He served in Germany from on or about 14 February 1970 to on or about 16 September 1970. He was assigned and reassigned within the 1st Squadron, 2nd Armored Cavalry Regiment. While there, he accepted NJP under the provisions of Article 15 of the UCMJ on/for: * 16 March 1970, being absent from his unit from 15 to 16 March 1970 * 27 March 1970, failing to go at the time prescribed to his appointed place of duty * 7 April 1970, disobeying a lawful order and disrespecting a commissioned officer * 27 May 1970, failing to go at the time prescribed to his appointed place of duty, being AWOL on 22 May 1970, and being AWOL on 27 May 1970 10. On 31 July 1970, the applicant underwent a psychiatric evaluation. He was diagnosed with an immature personality and an emotionally unstable personality, manifested by an inability to handle stressful situations. He had strong and poorly controlled anger, fluctuating attitude, poor judgment, and difficulties with authority. He had a character and behavior disorder and his rehabilitation potential was poor. He was psychiatrically cleared for any appropriate administrative action deemed appropriate by his chain of command. 11. On 1 August 1970, the applicant's immediate commander notified him of his intent to initiate separation action against him for unfitness under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 12. On 5 August 1970, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and the procedures/rights available to him. He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He further acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws in the event an undesirable discharge was issued to him. He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf. 13. On 5 August 1970, the applicant's immediate commander recommended the applicant's separation from the Army under the provisions of AR 635-212 due to unfitness. The immediate commander recommended the issuance of an Undesirable Discharge Certificate and indicated that: * the applicant had been a rehabilitative transfer to his company and had since been assigned to two different platoons under different commissioned and/or noncommissioned officers * in each case, his performance of duty and personal conduct had been extremely poor; he had been counseled numerous times to no avail * his separation for unfitness was appropriate because his performance was characterized by intentional shirking of his duties and conduct rendering him repeatedly subject to punitive action 14. On 8 August 1970, the applicant's intermediate commander recommended approval of the discharge action with the issuance of an undesirable discharge. He stated that the applicant was currently pending trial before a special court-martial and could receive a bad conduct discharge for two specifications of communicating a threat, one specification of disrespect, one specification of assaulting another Soldier, and one specification of possible possession of marijuana. All court action had been suspended pending the outcome of his separation processing. His senior commander also recommended approval. 15. On 8 September 1970, the separation authority approved the applicant's discharge under the provisions of AR 635-212 due to unfitness and directed the issuance of an Undesirable Discharge Certificate. The applicant was accordingly discharged on 19 September 1970. 16. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-212 due to unfitness with his service characterized as under other than honorable conditions. He was assigned separation program number (SPN) 28B (unfitness) He completed 1 year, 7 months, and 15 days of active service during this period and he had 127 days of lost time. 17. On 24 August 1973, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge. 18. On 11 August 1977, the ADRB notified him that it considered his request under the DOD Special Discharge Review Board (SDRP) and directed that his undesirable discharge be upgraded to an under honorable conditions, general discharge. Accordingly, the applicant was reissued a DD Form 214 that shows he was discharged with a general characterization of service effective 14 July 1977. 19. On 1 December 1978, the applicant was notified that the ADRB re-reviewed his previously-upgraded discharge as required by Public Law 95-126. As a result of this review, he was notified the ADRB's action to affirm his DOD-SDRP discharge upgrade was denied. The applicant was issued a DD Form 215 (Correction to the DD Form 214). 20. The applicant provides various documents from Suncoast Center for Community Mental Health. The Board requested, and The Office of The Surgeon General (OTSG) reviewed the medical documents he provided and rendered an advisory opinion on 1 July 2016 in his case. An OTSG official used as a reference the Diagnostic and Statistical Manual-5th Volume; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Separations), dated 6 September 2011. The OTSG official stated: a. The applicant entered active duty on 30 September 1968 and he was discharged on 19 September 1970. Records suggest he initially received an undesirable discharge in accordance with AR 635-212 (Unfitness) "because of habits and traits of character manifested by repeated commission of petty offenses and habitual shirking." His discharge was upgraded to under honorable conditions in December 1978. OTSG was asked to determine if there is a nexus between the information contained in the documentation and the misconduct that resulted in the applicant's discharge. 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 service. b. The only BH records included in the file are from Suncoast Center for Community Mental Health where he first presented on 22 July 2002 for depression, insomnia, and isolative behavior. Annual evaluations indicate that he was stable on medication but inconsistent in his adherence to treatment recommendations. His discharge summary dated 7 July 2005 shows a diagnosis of schizoaffective disorder, bipolar type, with a history of substance abuse and auditory hallucinations. c. Information regarding his misconduct comes from an initial psychosocial assessment conducted at Suncoast on 22 July 2002. He told this provider that he assaulted an officer and received a dishonorable discharge due to "racial problems." In the absence of medical records, it is not possible to determine if a BH condition contributed to his misconduct. 21. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He responded with a copy of his 1970 Report of Psychiatric Evaluation. He did not provide any other medical records. REFERENCES: 1. AR 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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. 3. On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual. 4. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review. 5. The Board has been advised in similar cases that the VA often requires validation or "affirmation" of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits. DISCUSSION: 1. The evidence of record shows the applicant exhibited an extensive history of misconduct that panned throughout his military service from entry to separation. He received extensive counseling and rehabilitative transfers but failed to respond constructively. His record of service included multiple instances of AWOL, several instances of NJP, and court-martial conviction. Accordingly, his immediate commander initiated separation action against him for unfitness (misconduct). 2. In connection with his discharge action, he underwent a mental status evaluation that yielded a diagnosis of immature and emotionally unstable personality, manifested by an inability to handle stressful situations. He had poorly controlled anger, a fluctuating attitude, poor judgment, and difficulties with authority. He had a character and behavior disorder and his rehabilitation potential was poor. He was psychiatrically cleared for any appropriate administrative action deemed appropriate by his chain of command. 3. His administrative separation was accomplished in compliance with applicable regulations at the time. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. The quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. He received an under other than honorable conditions discharge. 4. The ADRB considered his request under the DOD SDRP and directed that his undesirable discharge be upgraded to a general discharge. Accordingly, he was reissued a DD Form 214 that shows he was discharged with a general characterization of service effective 14 July 1977. The ADRB also reviewed his previously upgraded discharge as required by Public Law 95-126. Because of this review, he was notified the ADRB's action to affirm his DOD-SDRP discharge upgrade was unfavorable. 5. There is insufficient evidence to support a diagnosis of PTSD or related condition that contributed to his misconduct at the time. He was found unfit due to repeated offenses and habitual shirking. His separation for unfitness was appropriate because his performance was characterized by intentional shirking of his duties and conduct rendering him repeatedly subject to punitive action. 6. The applicant's service was interrupted by his repeated misconduct, not by any medical or behavioral health condition. His chain of command deemed him unfit for military service. Thus, the reason for his discharge was "unfitness." There is insufficient evidence to support a nexus between the medical documents he provides and the misconduct that led to 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) AR20150004601 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004601 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2