BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015710 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 BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015710 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. BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20150015710 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 characterization of service from under other than honorable conditions to honorable. 2. The applicant states, in effect, he believes the record is in error or unjust because he did not possess the necessary skills and knowledge at the time of his enlistment and his unit expected him to complete tasks, which were beyond his capabilities. Army personnel were aware of his cognitive limitations since he enlisted with a 10th grade education at the age of 17. Having never finished high school, he did not receive the proper accommodations to ensure he could receive an honorable discharge. In addition, at the time of his service he was struggling with mental health issues, for which he never received the proper assessments or treatment. 3. The applicant provides: * 2 DD Forms 214 (Report of Separation from Active Duty) * 1-page document from The Centers for Families and Children 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 17 years and 19 days old when he enlisted in the Regular Army on 1 August 1974. He successfully completed basic combat training (BCT) and advanced individual training (AIT) and he was awarded military occupational specialty (MOS) 31B (Field Communications Electronic Equipment Repairman). Upon completion of AIT, the applicant was assigned to Battery D, 4th Battalion, 1st Air Defense Artillery, Fort Bliss, TX. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six occasions: * 27 June 1975, for failing to go to his appointed place of duty at the prescribed time * 28 August 1975, for assault on a fellow Soldier with two dangerous weapons; a length of pipe and a 2x4 inch board * 11 November 1975, for disobeying a lawful order * 12 November 1975, for being absent without leave (AWOL) from 31 October 1975 to 9 November 1975 * 8 December 1975, for failing to go to his appointed place of duty at the time prescribe on two separate occasions * 27 January 1976, for breaking restriction 4. His military personnel records jacket (MPRJ) contains a Record of Counselling, which shows the applicant received repeated counseling on his responsibilities, duty performance, conduct, attitude, and for having been AWOL. 5. On 25 November 1975, the applicant was psychiatrically evaluated pending administrative discharge. The applicant stated he was opposed to separation. He felt that if properly motivated, he could become a productive Soldier and he expressed a desire for a rehabilitative transfer in hope of improving his behavior. There were no signs of psychiatric disorders and the mental health official conducting the evaluation cleared the applicant for any administrative action deemed appropriate by his command. 6. His military records are void of any evidence that he suffered from or sought treatment for mental health issues while serving on active duty. 7. His MPRJ contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 11 December 1975, which shows the applicant's commander deemed the applicant unable to adapt to military life, as he was disrespectful of authority and could not accept discipline. The applicant's commander furnished him with a copy of the recommendation. The form further shows: * he acknowledged that he received a copy of his commander's recommendation to bar him from further reenlistment * he was counseled and advised of the basis for the action * he indicated he did not desire to submit a statement in his own behalf * the bar to reenlistment was approved on 17 December 1975 8. On 13 January 1976, the applicant signed a document acknowledging that consulting counsel advised him that his commander was contemplating action to accomplish his separation for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 – frequent incidents of a discreditable nature with civil or military authorities. Consulting counsel also advised him of the bases for the contemplated separation, its effects, of the rights available to him, and of the effects of any action taken to waive his rights. a. The applicant waived consideration of his case before a board of officers, he waived a personal appearance hearing before a board of officers, and indicated that he would submit statements in his own behalf. However, it is unclear whether he submitted the indicated statements because they were not present in his MPRJ. The applicant also waived his right to representation by counsel. b. The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 9. On 14 January 1976, the applicant received a notice of initiation of elimination proceedings for unfitness under the provisions of paragraph 13-5a(1), Army Regulation 635-200 from his commander. His commander informed him of his rights and the applicant acknowledged receipt that same day. 10. On 19 January 1976, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, Chapter 13, paragraph 13-5a by reason of unfitness. The immediate commander further requested a waiver of a rehabilitative transfer. He stated the applicant had been a liability ever since he joined the unit; the applicant did not care about his job or his fellow Soldiers; he had to be constantly supervised to perform even the simplest of tasks; he was constantly late for work and AWOL; and his appearance and dress was deplorable. 11. On 20 January and 22 January 1976, his intermediate commanders urged and strongly recommended approval of the recommendation for elimination of the applicant from further service with all appropriate haste. They note: a. Although the applicant opposed the separation, his records of NJP refuted the applicant's contention that he possessed the potential to be a positive contributor to the Army. b. If retained, the applicant will undoubtedly create additional problems and be a greater burden to the Service. c. The intermediate commanders also requested a waiver of rehabilitative transfer, as it would not serve a meaningful purpose because the applicant's chain of command gave him many opportunities to become an acceptable Soldier. 12. On 2 February 1976, the Staff Judge Advocate (SJA) reviewed the elimination action. The SJA found that the elimination action was legally sufficient to support a waiver of rehabilitative transfer. The SJA recommended approval of the request for waiver of rehabilitative transfer and the request to eliminate the applicant from military service under the provisions of Army Regulation 635-200, chapter 13. 13. On 2 February 1976, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13 and directed the issuance of an Undesirable Discharge Certificate. 14. On 9 February 1976, the applicant was discharged accordingly. His DD Form 214 confirms he was separated under the provisions of Army Regulation 635-200, paragraph 13-5a(1) with an other than honorable conditions characterization of service and that he completed 1 year and 6 months of creditable active military service with 9 days of lost time. 15. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge. On 30 January 1980, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that his was proper. Accordingly, the ADRB denied his request for a change in the type and nature of his discharge. 16. The applicant provides a 1-page document issued by a Licensed Independent Social Worker with a supervision designation (LISW/S) from the Centers for Families and Children. This document shows that the diagnosing clinician, the LISW/S diagnosed the applicant with schizophrenia (paranoid type) on 5 August 2015. 17. In the processing of this case an Army Review Boards Agency staff psychiatric opinion, dated 7 February 2017, determined there was not a nexus between the applicant’s misconduct and his mental health and there was insufficient evidence to support changing the characterization of his service. a. The psychologist noted there were limited medical records in the Department of Veterans Affairs Joint Legacy Viewer as well as no military medical records. The source document provided was the applicant’s evidence. b. The applicant is requesting an upgrade of his discharge based on an undiagnosed learning disability. He states he was given tasks beyond his abilities. The applicant received a behavioral health evaluation in conjunction with his administrative separation processing. It was determined the applicant did not meet the criteria for a psychiatric diagnosis. c. The applicant argues he had a learning disability, yet he completed the Field Communications Electronic Equipment Repair course. He had a general technical score of 123 and a skilled technical score of 96. These scores and his completion of high school are inconsistent with his claim of an undiagnosed learning disability. d. The applicant had repeated acts of misconduct with none of those acts attributed to a learning disability. Among his offenses were his failure report for duty, disobeying orders, AWOL, broke restriction and assaulted peers. There is evidence of multiple counseling by his chain of command concerning his lack of military discipline and lack of compliance with standards. The psychologist opined, "The idea that coming to work or not assaulting peers, or being AWOL are failures on the Army's part to accommodate a learning disability has no plausibility, especially when combined with the absence of any evidence from experts on what his learning disabilities are and their relation to his misconduct." e. The available evidence of record shows the applicant potentially had a boardable health condition [schizophrenia (paranoid type)]. The evidence of record shows he did meet the mental health standards of Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) at the time of his service. A separation medical examination is on file in his record as required by law. 18. A copy of the advisory opinion was mailed to the applicant for his review/rebuttal. He has not responded. REFERENCES: Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel: a. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 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. Paragraph 3-7b provides 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. Despite his relatively young age and education level, his record revealed that he possessed the necessary skills to successfully complete BCT and AIT and to be awarded MOS 31B. His MPRJ also revealed a disciplinary history, which included numerous infractions. 2. His military records are void of any evidence that he suffered from or sought treatment for mental health issues during the period of his military service. Contrary to his contentions, his chain of command repeatedly addressed his poor duty performance and attitude through counseling and he received a mental health assessment prior to his discharge. The mental health evaluation revealed no signs of psychiatric disorders and cleared him for any administrative action deemed appropriate by his command. 3. The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness – frequent incidents of a discreditable nature. His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. 4. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge. Furthermore, his separation action received a legal review by the SJA prior to approval. 5. His record shows he was 17 years of age at the time of his enlistment and older at the time of his offenses. However, there is no evidence, which indicates he was any less mature than other Soldiers of the same age who successfully completed their military service. Nor did he provide evidence to support his contention that he has a learning disability that interfered with his ability to soldier. In fact, the medical opinion asserts that his general technical and skilled technical scores are sufficiently high enough and thus they do not support his contention he had a learning disability that interfered with his ability to comply with military standards of discipline. The opinion does state that he potentially had a boardable health condition (schizophrenia). However, it was not diagnosed during his period of service. He was medically cleared for administrative separation processing based on his repeated acts of indiscipline. 6. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not appear to meet the criteria for a general or an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015710 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015710 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2