DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMA-RB 24 April 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150016995 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 11 April 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 24 August 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl · ,11b>SU? - t.L;. Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150016995 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: 11 April 2017 DOCKET NUMBER: AR20150016995 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: 11 April 2017 DOCKET NUMBER: AR20150016995 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 discharge under other than honorable conditions to general under honorable conditions. 2. The applicant states, in effect, he was 17 years old and was diagnosed with an immature personality. He believes he was discharged with a mental condition that was incurred in the line of duty. He was discharged due to no fault of his own for a mental condition, not for misconduct. However, he believes he did his job well as a cook. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 13 July 1971 * Standard Form 600 (Chronological Record of Medical Care), dated 28 May 1971 * endorsement by the commanding general * Social Security Administration (SSA) Form SSA-4734-F4-SUP (Mental Residual Functional Capacity Assessment), dated 4 December 2009 * self-authored letter dated 8 December 2016 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 enlisted in the Regular Army on 17 August 1970 at the age of 17 years and 3 months. He completed training and was awarded military occupational specialty 94B (cook). He was assigned to Germany on 7 January 1971. 3. On 19 March 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from his place of duty. 4. On 5 April 1971, the applicant's commander provided a statement for pending court-martial charges wherein he stated the applicant's attitude was poor concerning job performance, cooperation with superiors, and observing Army regulations. The applicant showed no interest in conducting himself within the guidelines of military discipline and acceptable conduct. 5. On 10 May 1971, the applicant was charged with the following violations of the UCMJ and referred to a special court-martial. * 26 March 1971, leaving his post as a sentinel before he was properly relieved * 27 March 1971, assaulting a Soldier by pushing him * 27 March 1971, failing to obey an order * 28 March 1971, failing to obey an order 6. On 28 May 1971 at the request of his commander, the applicant underwent a psychological evaluation. The medical provider stated the applicant was cleared for administrative action deemed necessary by the command. His diagnosis was immature personality, not in the line of duty, and not due to his own misconduct. He recommended separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability). a. The provider stated the applicant hit another Soldier in his unit with a pool cue following an altercation, which the applicant claimed was initiated by the other Soldier. The applicant stated that in the 7 months he had been in his current unit, he had been involved in frequent fights. He contended that his behavior was no worse than his peers. b. The applicant stated he had four nonjudicial punishments under Article 15 and was pending a court-martial. c. The provider stated the applicant's behavior did not indicate any psychiatric symptomatology or organic deficit or impairment other than a bad temper. The applicant was very cooperative during the interview. The applicant's diagnosis represented a character and behavior disorder not amenable to treatment or rehabilitation. d. The applicant was fearful of being subjected to severe disciplinary actions and desired an administrative separation. 7. On 21 June 1971 after the completion of the psychiatric evaluation and a separation medical exam, a medical officer determined the applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 8. On 17 June 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He was advised of his rights and counseled by a military attorney. He freely made his request for discharge and he elected not to submit statements in his own behalf. He acknowledged he could be discharged under other than honorable conditions and receive an Undesirable Discharge Certificate. As a result: * he would be deprived of many or all Army benefits * he would be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life * he did not provide a statement 9. On 30 June 1971, the approval authority approved the applicant's request and directed his discharge under Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate and his reduction to the lowest enlisted grade. 10. On 13 July 1971, the applicant was discharged under other than honorable conditions and issued an Undesirable Discharge Certificate. His DD Form 214 shows that he served 10 months and 27 days of continuous active service. 11. 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 limitations. 12. In support of his application, he provided a Mental Residual Functional Capacity Assessment, dated 4 December 2009. This form shows the applicant cannot complete a normal work-week without excessive interruptions from psychological symptoms of limited concentration and markedly limited social interaction and adaptation ability. This form appears to be used for applying for SSA disability benefits. 13. The Army Review Boards Agency (ARBA) psychologist reviewed the applicant's military personnel and medical records and the evidence provided by the applicant. The psychologist determined there is no evidence of a medical disability or condition which would support a change of character or reason for the applicant's discharge. The psychologist further determined the presence of an immature personality did not mitigate the applicant's misconduct that led to his separation. As required, this advisory was provided to the applicant for comment/rebuttal. 14. The applicant replied to the advisory with a written statement to the effect: * he was 17-18 years old and immature when he was in the Army * he did not understand what was going on around him * he has no recollection of any specific fights * people around him drank alcohol and got drunk * he did not have any trouble in basic training or advanced individual training * he did not understand his guard duty requirements * he did not realize he would not get an honorable discharge and he would not have requested discharge for the good of the service in lieu of trial by court-martial if that had been explained REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. b.  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.  Medical examinations under chapter 10 are not required. However, when a Soldier who is being processed under chapter 10 requests a medical examination he or she will also undergo a mental status evaluation. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The causes for rejection include character and behavior disorders where it is evident by history and objective examination that the degree of immaturity, instability, personality inadequacy, and dependency seriously interfere with adjustment to the military. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System and 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. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to a medical evaluation board. Those members who do not meet medical retention standards are referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. DISCUSSION: 1. The applicant received a psychiatric evaluation prior to discharge which found no psychiatric symptomatology or organic deficit. An Army provider determined the applicant met medical retention standards and administratively cleared him for administrative separation. His diagnosis of immature personality was found to meet medical retention standards. Therefore, there was no requirement to refer him into the medical disability evaluation system. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 3. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 4. The applicant contends that he was young and immature, which was the cause of his conduct that led to his discharge. However, he completed training without disciplinary problems, which demonstrates that he possessed the age and maturity necessary for military service. 5. The ARBA psychologist determined there was no evidence of a medical disability or condition which would support a change of character or reason in this case. Notwithstanding the applicant's arguments, the psychologist further determined the presence of an immature personality did not mitigate the applicant's misconduct that led to his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016995 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016995 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2