IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150016665 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: 23 March 2017 DOCKET NUMBER: AR20150016665 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 AR20110024903, dated 3 July 2012. ______________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: 23 March 2017 DOCKET NUMBER: AR20150016665 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 bad conduct discharge. 2. The applicant states, in effect, he had a mental illness while in the service that was not diagnosed by a psychiatrist. He had hallucinations and heard voices. He was clearly unable to make decisions on his own. He has since been put on medications to manage his symptoms. An upgrade of his discharge would open the door for better employment and be a great relief to him and his family. 3. The applicant provides: * post-service psychiatric assessments * post-service statement from a psychiatrist in relation to disability determination * post-service statements from medical doctors 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 AR20110024903, on 3 July 2012. 2. The applicant provides several post-service statements from medical doctors and psychiatric evaluations that were not previously considered and warrant consideration by the Board. 3. The applicant enlisted in the Regular Army on 11 April 1985 and he held military occupational specialty 94B (Food Service Specialist). He was assigned to Fort Bliss, TX. 4. On 20 March 1986, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for breaking restriction. His punishment consisted of a reduction to E-1, forfeiture of pay, and restriction. 5. On 8 May 1986, he was arraigned at a special court-martial convened by Headquarters, U.S. Army Air Defense Artillery, Fort Bliss, TX, for violating the UCMJ as follows: * Charge I, one specification of failing to report to duty in the kitchen of the troop mess hall * Charge II, two specifications of being disrespectful in language towards a noncommissioned officer (NCO), one specification of disobeying a lawful order, and one specification of assaulting an NCO * Charge III, two specifications of assaulting a military policeman 6. The court found him guilty of Charge I and its specification, Charge II and two specifications of disrespect, and Charge III with one specification of assault. The court sentenced him to a reduction to the lowest enlisted grade, a bad conduct discharge, confinement for 90 days, and a forfeiture of $200 pay for 3 months. 7. On 20 June 1986, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. The convening authority also ordered the record of trial be forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 8. On 22 October 1986, the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence. 9. Special Court-Martial Number 56, issued by the U.S. Army Armor Center, Fort Knox, KY, on 13 April 1987 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed. 10. On 18 May 1987, the applicant was discharged from the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial with a bad conduct discharge under the provisions of chapter 3 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). This form further shows he completed 1 year, 11 months, and 26 days of active service during this period. He had lost time from 8 May to 19 June 1986 and excess leave from 5 September 1986 to 18 May 1987. 11. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that Board's 15-year statute of limitations. 12. On 3 July 2012, the Board reviewed his request for an upgrade but found insufficient evidence to support an upgrade of his discharge. The Board denied his request. 13. The applicant provides several post-service psychiatric evaluations as well as medical statements. The Board forwarded his documents to the Army Review Board Agency (ARBA) psychologist-medical advisor for review. He stated: a. A medical advisory opinion was requested to review the applicant’s record for potential medical condition(s) not considered during his separation processing. Specifically, (1) does the available record reasonably support post-traumatic stress disorder (PTSD), or other boardable behavioral health conditions, existed at the time of the applicant's military service? (2) Did these conditions fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? (3) Is this condition or conditions a mitigating factor in the misconduct that resulted in the applicant's discharge from the military? (4) In accordance with Title 10, U.S. Code (USC) Section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? And (5) determine if there were any additional information deemed appropriate. b. The applicant received a bad conduct discharge from a special court-martial. He is petitioning for an upgrade of his discharge. The sources used during this medical review included a limited review of Veteran's Administration (VA) records through the Joint Legacy Viewer (JLV), medical evidence he submitted with his application, his official military personnel file including his court-martial orders, and his previous application with evidence. c. He was in the Army from 11 April 1985 to 18 May 1987. Available military records do not show that he met the criteria for his current diagnosis of schizophrenia during his period of military service. He also has a history of heavy substance use that is attested in available records. He did not present evidence that he met criteria for a psychotic disorder during his military service. Instead, he said that his "mental illness was not diagnosed by a psychiatrist leading to hallucination and hearing voices." His schizophrenia was first diagnosed on 1 July 1989. This diagnosis occurred in his mid-twenties. The early to mid-twenties is a peak time for first occurrence of a psychotic episode in men. The applicant is not claiming he had a psychotic break prior to this episode and described a good premorbid adjustment prior to entering the Army in his submitted materials. It is not clear, given available evidence, what symptoms the applicant had that would have enabled a competent mental-health provider exercising due diligence to diagnose a psychotic spectrum disorder in a patient with this applicant's prior history. It is undoubtedly true that the applicant did develop a diagnosable schizophrenia sometime after he left the Army. His diagnosis was first made more than 4 years after his discharge from the Army. d. In regard to the referral questions: (1) The applicant's available records do NOT at the time of his discharge in April 1985 reasonably support him having had a boardable medical condition. (2) He met medical retention standards found in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation, meaning he had no mitigating mental health or physical condition warranting separation through medical channels; (3) His case material did NOT include a medical examination that met Title 10, USC section 1177 requirements. (4) The applicant likely was on developmental trajectory for a diagnosis of schizophrenia during his military service as evidenced by his self-medicating, irritability, poor frustration tolerance, poor social judgment during his service, and escalating social isolation after service, but he did not, on available evidence, have a presentation that would have enabled a competent practitioner to do any more than diagnose him as a young man at risk for developing schizophrenia. e. In conclusion, the applicant met medical retention standards in accordance with chapter 3, AR 40-5-1, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. A review of available documentation did NOT find evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. A casual nexus between the applicant's behavioral health diagnoses post-service and his misconduct was not discovered. 14. The applicant was provided with a copy of this advisory opinion for review and submission of additional comments and/or a rebuttal. He responded and stated he is still taking medication for his psychiatric disorders. He reiterates that his time in the Army was a very difficult time for him and he again asserts that his mental disabilities were not properly diagnosed while he was in the service. He did not receive enough scrutiny while in service to see if in fact he needed medical attention. He reiterates he has been employed for 10 years and has been in a significant relationship for more than 5 years. In addition, he provides the following additional evidence: a. His mother provided a statement dated 13 November 2016. She states the applicant was well liked in high school and the captain of his soccer team. She noticed that his behavior and temperament started to change in high school, but she did not know why. He also started to drink which she thought was typical teenage mischief. When he returned home after his discharge, she knew he just wasn’t right but didn’t know what was wrong with him. He ended up living on the streets until he went into rehabilitation. In 1994, she found a medical professional who diagnosed the applicant with schizophrenia and her son entered treatment. He remains in treatment and is prescribed medication. She firmly believes that he exhibited symptoms of his illness when he served in the military. At this time, his discharge characterization effects his ability to get better employment. With a discharge upgrade, she believes his quality of life would improve. b. A letter from a medical doctor at the University of South Florida, Department of Psychiatry and Behavioral Medicine, dated 23 June 1994, who states the applicant has chronic paranoid schizophrenia and was prescribed medication to manage his illness. c. A psychosocial evaluation completed at the Florida Center for Addictions and Dual Disorders, dated 18 July 2002, which states the applicant reports regular use of substances to include alcohol. The interviewer stated the applicant said he was discharged for his bad behavior due to alcohol and substance abuse. He has an arrest record involving disorderly conduct and disturbing the peace. He was recommend for treatment at the facility for his dual [addiction] disorders. d. A psychiatric assessment from a medical doctor at the Fairwinds Treatment Center, dated on 6 February 2003, who states the applicant’s medical diagnoses include chronic paranoid schizophrenia with acute exacerbation, past history of alcohol and substance abuse, and gastroesophageal reflux disorder. e. Another psychiatric assessment by a medical doctor at the University of South Florida, Department of Psychiatry and Behavioral Medicine, dated 19 March 2003, written to the State to support the applicant's disability claim. The medical doctor provides a brief synopsis of the applicant’s health history and states he has severe and chronic paranoid schizophrenia with a past history of substance and alcohol abuse. She asserts his symptoms started in high school and continued while in the military service. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel: a. 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. b. 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation -from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. AR 635-40 establishes the Army physical disability evaluation system. It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Soldiers charged with an offense, or under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless the investigation ends without charges or the officer exercising proper court-martial jurisdiction dismisses the charge(s). Soldiers may not be referred for physical disability processing when action has been started that may result in their administrative separation under other than honorable conditions. b. A military treatment facility commander having primary care for Soldiers in an assigned, attached, or outpatient status may start action to evaluate a member’s physical ability to perform the duties of his officer, grade, rank or rating. c. When a commander believes that a Soldier of his command is unable to perform the duties of his office, grade, rank, or rating because of physical disability, will refer the Soldier for evaluation to the military treatment facility that provides support to his command. The request for evaluation will be in writing. It will state the reasons for believing the Soldier is unable to perform his duties. 3. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regrading an applicant’s request for the correction of a military record. 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. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a court-martial conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. DISCUSSION: 1. The applicant was convicted by a special court-martial of multiple specifications related to failure to report, disrespect, and assault of a law enforcement officer. His trial by a special court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted. 2. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. The evidence shows the court sentenced him to a bad conduct discharge and an appellate court affirmed the approved findings of guilty and the sentence. 3. He provides no evidence of an error or an injustice or that he was coerced during the court-martial process. Additionally, based on the medical review of his case, he met medical retention standards at the time of his separation. The advisory official found no evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case and a casual nexus between his behavioral health diagnoses post-service and his misconduct was not found. Notwithstanding the applicant’s arguments and his supporting post-service medical evidence, by regulation (AR 635-40) he was not authorized processing through the disability evaluation system because he had pending court-martial charges and was then convicted by a court-martial that imposed a punitive 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) AR20150016665 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016665 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2