IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150007481 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: 27 September 2016 DOCKET NUMBER: AR20150007481 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 for correction of the records of the individual concerned. ___________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: 27 September 2016 DOCKET NUMBER: AR20150007481 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * His discharge was inequitable because it was based on a treatable ailment which was never addressed or treated, and the ailment occurred during his service * He entered the service at 17 years of age (early graduate) "with no drinking at all" * his record shows a steady decline in performing his duties; this issue was never addressed 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Notice of Decision (Fully Favorable) - Social Security Administration * Social Security Administration Decision 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. The applicant was born in February 1965 and enlisted in the Regular Army at 17 years and 7 months of age on 3 September 1982. He successfully completed training and was awarded military occupational specialty 11B (Infantryman). 3. He served at Schofield Barracks, HI, with the 1st Battalion, 35th Infantry Regiment, from on or about 28 December 1982 to on or about 9 December 1985. 4. On 10 April 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk and disorderly in uniform in a public place. His punishment consisted of reduction to E-3 (suspended), forfeiture of pay, and restriction. 5. On 6 August 1985, he accepted NJP under the provisions of Article 15 of the UCMJ for being disorderly and bringing discredit upon the armed forces and for willfully disobeying a lawful order. His punishment consisted of reduction to E-3 (suspended), extra duty, and restriction. 6. On 4 December 1985, he underwent a physical examination for separation under chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He was determined to be medically qualified for separation. 7. On 8 December 1985, he underwent a mental status evaluation. His DA Form 3822-R (Report of Mental Status Evaluation) shows: * he exhibited normal behavior, unremarkable mood, clear thinking process, and normal thought content * there was no evidence of an emotional or mental disorder of psychiatric significance or severity as to warrant medical disposition * in spite of his expressed desire to remain in military service, his past behaviors and conduct suggested such an achievement was most unlikely * his retention would likely create additional management problems to the command * he was cleared for any administrative action deemed appropriate by his command 8. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains the following documents: a. Orders 338-112, issued by Headquarters, 25th Infantry Division, Schofield Barracks, HI, on 4 December 1985 reassigning him in the rank of private to the U.S. Army Separation Transfer Point, effective 12 December 1985, for the purpose of separation under the provisions of AR 635-200. b. A DD Form 214 that shows he was discharged on 10 December 1985 under the provisions of chapter 10 of AR 635-200, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. This form also shows he completed 3 years, 3 months, and 8 days of creditable active service. 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation. 10. He provides a May 2010 favorable decision from the Social Security Administration granting him supplemental security disability income (SSDI) due to schizophrenia. In its findings, the Social Security Administration noted the applicant was discharged after trying to choke another individual. It was further noted that the applicant's mental impairment began to worsen in 2009. 11. The Board forwarded his case to the Office of The Surgeon General (OTSG) for review. The OTSG rendered an advisory opinion on 3 August 2016, stating: a. A Record of Proceedings Under Article 15, UCMJ, dated 8 December 1985, shows disorderly conduct followed the next day by failure to obey a lawful order. It is not clear if this is the misconduct for which he was separated. b. A Report of Medical Examination completed on 4 December 1985 indicates that he was hospitalized twice in the prior 2 months: in November for alcohol detoxification and again in December for a suicide attempt by overdose on Tylenol and Motrin. On 6 December 1985, he was psychiatrically cleared for administrative separation. c. The only post-discharge documentation related to his BH condition is the 21 May 2010 Social Security determination which refers to a psychiatric evaluation conducted on 28 September 2009 in support of the diagnosis of schizophrenia for which he was awarded SSDI. d. Given the severity of his subsequent diagnosis, the SSDI determination that he is permanently disabled, and two psychiatric hospitalizations while in service, it is more likely than not that he was experiencing symptoms of a BH condition that may well have mitigated the behavior that led to his discharge. 12. The applicant was provided with a copy of this advisory opinion to allow him an opportunity to submit additional comments and/or a rebuttal. He did not respond. REFERENCE: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states 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 states 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: 1. The applicant's record is void of the complete facts and circumstances that led to his discharge. However, his record contains separation orders and a DD Form 214 that show he was discharged on 10 December 1985 under the provisions of chapter 10 of AR 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge. The available records do not show the charge(s) against him that led to his decision to voluntarily request discharge in lieu of trial by court-martial. 2. The issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. 3. The applicant was 17 years of age at the time of his enlistment and nearly 20 years of age at the time of his separation. There is no evidence that indicates his acts of indiscipline were the result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 4. The applicant does not provide the documentary evidence to corroborate his contention that he suffered from a behavioral health issue during his military service. His contention that he was not properly evaluated for a behavioral and/or a mental condition is noted; however, a mental status evaluation cleared him for any administrative action deemed appropriate by his command. 5. OTSG's advisory opinion concludes that, given the severity of his subsequent diagnosis, the SSDI determination that he is permanently disabled, and two psychiatric hospitalizations while in service, it is more likely than not that he was experiencing symptoms of a BH condition that may have mitigated the behavior 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) AR20150007481 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007481 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2