SAMR-RB 1 March 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 Proceedingsfor., AR20150017335 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 2 February 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 partial 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 3 July 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: Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150017335 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: 2 February 2017 DOCKET NUMBER: AR20150017335 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: 2 February 2017 DOCKET NUMBER: AR20150017335 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: a. an upgrade of his discharge, from an under other than honorable conditions discharge to an under honorable conditions (general) discharge; and b. a change in the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he was separated by reason of medical (mental health) disability. c. an opportunity to appear at a hearing before an Army Discharge Review Board (ADRB) traveling panel closest to Minneapolis, Minnesota. 2. The applicant states, in pertinent part, that he has been suffering from mental health issues since his teenage years. He feared telling anyone what he was experiencing because he did not want to be labeled as "crazy." After being late for duty on 5 occasions, he was given an Article 15 with a forfeiture of pay, rank reduction, and extra duty. His commander was aware of his family situation but made no suggestions as to the help that was available to him. He was worried about his family and he felt trapped in the military and had no other way to help them but to leave in an absent without leave (AWOL) status. Through years of counseling, therapy, and medication he has finally come to grips with his mental health diagnosis. 3. The applicant provides a self-authored statement, a letter of commendation, and the following documents labeled as: * Attachment A – Psychiatric Evaluation, dated 24 August 1999 * Attachment B – Citizens Acting Together Can Help (CATCH) Community Mental Health/Mental Retardation Center, Discharge/Transfer Summary * Attachment C – letter from Sanford Health Psychiatry and Psychology Clinic, University of South Dakota School of Medicine, dated 20 May 2016 * CATCH Medication Sheets, dated 10 April 2006 to 5 September 2014 * CATCH Chart, dated 19 August 2010 through 3 December 2010 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 25 August 1998. 3. He accepted non-judicial punishment (NJP) on 4 August 1999, under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty, on or about 21 July 1999. 4. Court-martial charges were preferred against the applicant on 4 November 1999, for being AWOL from on or about 5 August to 1 November 1999. 5. The applicant voluntarily requested discharge on 5 November 1999, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In doing so, he acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. a. He also acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. 6. The appropriate separation authority approved the applicant's voluntary request for discharge on 14 December 2000 and directed that he be issued an under other than honorable conditions discharge. 7. The applicant was discharged accordingly on 23 January 2001. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, he accrued 445 days of lost time, and his service was characterized as under other than honorable conditions. His narrative reason for separation is shown as "In Lieu of Trial by Court-Martial." 8. The applicant's record is void of documentation that shows he was diagnosed with or treated for any mental health disorder during his period of military service. Additionally, his available records do not show he was diagnosed with a condition or affliction, received treatment, was issued a permanent physical profile, or had any condition that warranted his entry into the physical disability evaluation system; specifically, his referral to an MOS medical retention board, medical evaluation board (MEB), or physical evaluation board (PEB). 9. The applicant provides: a. A letter from a psychiatrist in Philadelphia, PA, dated 24 August 1999, who diagnosed the applicant with schizoaffective disorder, bipolar type. The psychiatrist stated that it was significantly possible the applicant would lose control if returned to military service and recommended he be separated from the Army on medical grounds. b. A letter from Sanford Health Psychiatry and Psychology Clinic, University of South Dakota School of Medicine, dated 20 May 2016, which states the applicant is receiving treatment for management of schizophrenia and anxiety. 10. In connection with the processing of this case, an advisory opinion was obtained from the Chief, Behavioral Health Division, Office of the Surgeon General (OTSG), Department of the Army. The medical advisory opinion states: a. In October 2015, the applicant requested the Board upgrade his discharge to general under honorable conditions. The OTSG was asked "to determine if his mental health conditions, including Post-traumatic Stress Disorder (PTSD), attributed (sic) to the misconduct leading to the other than honorable conditions discharge." This opinion is based solely on the information provided by the Board as the Department of Defense electronic medical record was not in use at the time of the applicant's service. b. The applicant reported a history of psychiatric symptoms, noting that at age 16 he began hearing voices which increased when he entered military service. There is no record of behavioral health (BH) treatment while in service. During a psychiatric evaluation, conducted on 24 August 1999 while he was AWOL, the applicant's mother confirmed that he has a family history of bipolar disorder and exhibited uncontrollable rages from age 12. As only the first page of this report is provided, we do not know the provider's diagnostic conclusion. The next record of treatment is in 2006 at a community mental health clinic where he was prescribed Risperdal. An intake dated 3 December 2010 concludes with a rule out diagnosis of schizophrenia, paranoid type. There are no records covering the period between 2006 and 2010. c. It is possible that the stress of the military triggered the applicant's predisposition to bipolar disorder. In order to provide an opinion, we would require a definitive diagnosis of mental illness by a qualified provider. While it is understandable that this may not be available in his Army records, it should be available from one of his non-military providers. Without confirmation of a diagnosis, OTSG is not able to provide an opinion regarding what BH condition(s) may have contributed to his misconduct. 11. The advisory opinion was provided to the applicant on 11 May 2016, to afford him the opportunity to respond to its content. He replied that he had been in denial about his mental condition. He also provided the documents labeled as attachments a. through c. above [Paragraph 3, The Applicant provides…], and a summary of his social security administration income payments. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority 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. 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. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge, and a change in the narrative reason for separation shown on his DD Form 214 to show he was separated by reason of medical (mental health) disability, was carefully considered. 2. The applicant contends he was suffering from mental health issues at the time of his enlistment. However, his record is void of evidence that supports this contention. Although he provides a psychiatric evaluation, dated 24 August 1999, which occurred during his period of AWOL, his record does not contain any other documentation (especially military documentation) that shows he suffered from a mental health condition while on active duty, he was diagnosed with a mental health condition at the time of discharge, or that such a deficiency contributed to the misconduct that led to his discharge. 3. The applicant's record shows he received NJP and had at least one period of AWOL. It appears after court-martial charges were preferred against him and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army. Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu by court-martial. 4. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. In view of the fact that he voluntarily requested discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and does not support an upgrade of his discharge now. 5. The applicant's narrative reason for separation was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. Absent the AWOL offense, there was no reason to prefer court-martial charges against him, and absent the court-martial charges, there was no reason to process his discharge. 6. There are no provisions to support the applicant’s request for a personal appearance before an ADRB traveling panel closest to Minneapolis, Minnesota, because he petitioned the ADRB for a review of his discharge after that board's 15-year statute of limitations. Therefore, his case is being considered by the ABCMR and by regulation, an applicant is not entitled to a hearing before this board. A panel of this Board or the Director of the ABCMR may authorize a personal appearance before the Board. However, in this case, the evidence of record and the independent information provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017335 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017335 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2