IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150007286 BOARD VOTE: ____X_____ __X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150007286 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading the individual’s service to general under honorable conditions and issuing the individual a new DD Form 214 for the period ending 20 August 1973 to show the characterization of service as "General, Under Honorable Conditions." ______________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: 22 September 2016 DOCKET NUMBER: AR20150007286 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 an upgrade of his undesirable discharge. 2. The applicant states he believes he was a victim of race discrimination while serving in the military. In addition, he was not afforded any mental health treatment. After he was discharged from service, he was diagnosed with mental health conditions which include: bipolar disorder, schizophrenia, paranoia, obsessive compulsive disorder, and readjustment disorder. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * several letters of reference * numerous pages of post-service medical records * page 6 of a letter, presumably from the Department of Veterans Affairs CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 12 August 1971, prior to enlisting in the Regular Army (RA), the applicant underwent a medical examination which determined he was fully qualified for enlistment. 3. He enlisted in the RA on 13 August 1971. He completed training and he was awarded military occupational specialty 71H (Personnel Management Specialist). Upon completion of training, he served with the 569th Personnel Services Company, U.S. Army Europe - Germany. 4. His record contains a Standard Form 513 (Consultation Sheet), dated 20 November 1972, which notes the applicant has "fall out" spells all of his life. The applicant stated that he knew when the spells were approaching and during the spells he had amnesia. This form states the applicant's sister has epilepsy. The attending physician recommended the applicant be evaluated for seizure disorder as soon as possible. An annotation on this form appears to indicate the applicant was scheduled for evaluation on 27 December 1972; however, the results of the evaluation are not contained in the applicant's records. 5. Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) of DA Form 20 (Enlisted Qualification Record), shows the applicant was absent without leave (AWOL) from 4 to 12 March 1973. 6. His records contain Special Court-Martial Order Number 4, issued by Headquarters, U.S. Forces Support District Sued Bayern, dated 18 May 1973, which shows he pled not guilty; however, he was found guilty of eight specifications of violating the Uniform Code of Military Justice (UCMJ) primarily pertaining to failing to go at the time prescribed to his appointed place of duty, being disrespectful, being AWOL, and breaking restriction. He was reprimanded, reduced to the rank/grade of private/E-1, confined to hard labor for 30 days, and a forfeiture of $200 pay for 3 months. The sentence was adjudged on 28 March 1973. 7. On 29 May 1973, a charge sheet was prepared that shows the applicant was pending two specifications for failing to go to his appointed place of duty on 11 May 1973 and 14 May 1973. He demanded trial by court-martial. This form is incomplete because it contains no signatures and no court-martial orders for this charge were found in his record. 8. On 7 June 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty on 6 June 1973. 9. His records contain a Standard Form 88 (Report of Medical Examination), dated 23 July 1973, which notes the applicant had no significant change in his health since entry into the Army and that he was fully qualified for separation under chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 10. The complete facts and circumstances of the applicant's discharge processing are not available for review with this case. However, his record contains a DD Form 214 that shows he was discharged on 20 August 1973. This form shows he was assigned a separation program number of "246," which denotes he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions characterization of service. This form also shows he completed 2 years of creditable active service with time lost for the period 4 through 11 March 1973. 11. There is no evidence in the applicant's personnel service record which shows that he sought assistance from his chain of command for issues involving discrimination. 12. The applicant provides: a. Letters documenting his post-service medical care and treatment for schizoaffective disorder, personality disorder, and obsessive-compulsive disorder. b. Numerous pages of post-service medical treatment records and mental health assessments. One such assessment notes the applicant was discharged because he would bring drugs and prostitutes to the base and that his commander was a racist. Additional assessments indicate a history of alcohol and drug abuse as well as an entry noting a sister who suffers from bipolar disorder. c. A letter from a family member who attests the applicant was a normal teenage boy who upon being discharged from the Army became a sullen belligerent young man. 13. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 14. The Board forwarded this case to the Office of The Surgeon General (OTSG) for review. On 3 August 2016, the Chief, Behavioral Health (BH) Division, Health Care Delivery, Medical Command, rendered an advisory opinion in the processing of this case. a. The advisory official noted that the applicant told a BH provider that he was discharged “because he would bring drugs and prostitutes.” A special court-martial order dated 18 May 1973 indicates he was found guilty of failure to report for duty, (being) disrespectful toward a superior and breaking restriction. b. The applicant requested that this Board upgrade his discharge to general under honorable conditions. The OTSG was asked to determine if the applicants BH conditions (bipolar disorder and schizophrenia) contributed to the misconduct leading to the under other than honorable conditions discharge. The opinion is based solely on the information provided by the Board. c. The applicant is currently diagnosed with schizoaffective disorder, bipolar type, and obsessive-compulsive disorder not otherwise specified. A 29 April 2015 letter from his case manager at Rosecrance Ware Center, where he has been in treatment “on and off since 2007,” indicates that “he participates in community support services, case management, and therapeutic services to aid in obtaining stable mental health.” e. Despite the absence of BH records during the applicant’s military service, the severity of his subsequent impairment and his need for continued supportive services suggests that it is more likely than not that at the time of the misconduct, he met the criteria for schizoaffective disorder, bipolar type, a condition that may well have mitigated his behavior. 15. The advisory opinion was provided to the applicant on 2 August 2016 for acknowledgement/rebuttal. He did not respond within the time allowed. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant was found guilty by special court-martial of eight specifications of violating the UCMJ primarily by failing to go at the time prescribed to his appointed place of duty, being disrespectful, being AWOL, and breaking restriction. It is presumed court-martial charges were preferred against him for a subsequent violation of the UCMJ and he elected to be discharged in lieu of trial by court-martial. 3. To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial. At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service. 4. In the absence of evidence to the contrary, the presumption of administrative regularity must be applied. As such, even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations. It is also presumed that 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. 5. Although the applicant alleges that he was a victim of discrimination during his military service, there is no evidence in his military records and the applicant has not provided documentary evidence supporting this contention. Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged discrimination. 6. The applicant contends he was not afforded any mental health treatment. His records do not show that, during his military service, he had a mental health condition that required mental health treatment or that he sought counseling/medical treatment to correct his problem. While the applicant's record does contain a recommendation for him to be evaluated for a seizure disorder, the results of the evaluation were not filed in his records. 7. On 23 July 1973, the applicant underwent a physical examination in which it was noted that there was no significant change in his health since his entry on active duty and that he was fully qualified for separation in accordance with Army Regulation 635-200, chapter 10. 8. Review of the available evidence shows he was diagnosed by a competent mental health professional who determined that he suffers from bipolar disorder and schizophrenia and he has been receiving treatment since 2007. 9. The OTSG was asked to determine if the applicants BH conditions contributed to the misconduct leading to his under other than honorable conditions discharge. The OTSG opined that, despite the absence of BH records during the applicant’s military service, the severity of his subsequent impairment and his need for continued supportive services suggests that it is more likely than not that at the time of his misconduct, he met the criteria for schizoaffective disorder, bipolar type, a condition that may well have mitigated his behavior/misconduct. 10. Taking into consideration mitigating circumstances, based on his extensive history of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable discharge. A conclusion that he had a mitigating BH condition would support a conclusion that the characterization of his service should be upgraded to general, under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007286 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007286 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2