SAMR-RB 21 July 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 AR20150017831 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 30 May 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 21 November 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 Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20150017831 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: 30 May 2017 DOCKET NUMBER: AR20150017831 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 to amend the decision of the ABCMR set forth in Docket Number AC89-06121 on 14 February 1990. ______________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: 30 May 2017 DOCKET NUMBER: AR20150017831 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC89-06121 on 14 February 1990. Specifically, he requests an upgrade of his under other than honorable conditions discharge to an honorable discharge by reason of medical disability. 2. The applicant states, in effect, that while speaking with his separation specialist during his separation processing from the U.S. Army, he was under the impression that he was being separated with a medical discharge. a. He is struggling to find the means to stay ahead of his bills and feels he needs some assistance from the Department of Veterans Affairs (VA). b. He is in need of medical and financial assistance from the VA. He really appreciates all of the help. He was homeless for a number of years before he finally received assistance from local veterans' organizations. He is very thankful for the veterans' group that helped, but he knows the assistance will not last much longer. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 August 1969. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC89-06121 on 14 February 1990. 2. The applicant provides a new statement that constitutes a new argument. This new argument was not previously considered by the board and now warrants consideration. 3. The applicant was inducted into the Army of the United States on 21 November 1967. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 94A (Cook). His record shows he served in the Republic of Vietnam for 5 months and 27 days. 4. The specific facts and circumstances surrounding the applicant's discharge are not available for review. 5. A DD Form 214 confirms the applicant was discharged on 26 August 1969, in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness, and his service was characterized as under other than honorable conditions. He was separated in the rank/grade of private/E-1 following his completion of 1 year, 7 months, and 4 days of active service, with 62 days of lost time. 6. There is no evidence the applicant failed to meet the retention standards for his grade and military specialty, and no evidence he was pending a determination by a physical evaluation board at the time of his separation. 7. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 8 In the processing of this case, an advisory opinion was obtained on 7 February 2017 from an Army Review Boards Agency (ARBA) Medical Advisor/Psychologist. The advisory official noted and opined: a. The applicant's medical records do not at the time of his discharge reasonably support him having had a boardable medical condition for that period. He met mental-health standards and available case material does not support the existence of a mitigating mental-health condition. b. The available records did not include an exit medical examination required by Title 10, Section 1177. However, based on available behavioral-health evidence, there is no mitigation for reason of psychiatric condition for his misconduct. Nevertheless, the intellectual limitations of the applicant make his treatment appear, at least in the advisory official's judgement, as severe and harsh, even though his service clearly was less than fully honorable. c. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service, and his medical condition was considered at the time of his discharge. d. A review of available documentation did not discover evidence of a mental-health condition that is sufficient to change the character of the discharge in this case. However, his intellectual deficiencies do seem to justify some mitigation of his misconduct. A nexus between his misconduct and his mental health was not discovered; however, it does appear his weak intellect made remediation of his misconduct unlikely through no fault of his own. 9. The applicant was provided a copy of the advisory opinion on 8 February 2017, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. The regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. 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. 3. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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. This regulation provides that: a. The medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be 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. b. An enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions. DISCUSSION: 1. The applicant requests correction of his DD Form 214 to show an upgraded characterization of service, from under other than honorable conditions to honorable, by reason of medical disability. 2. The applicant contends he thought he was being separated because of medical reasons. His complete medical records are not available for review in this case and the evidence of record does not show he sustained an injury or illness that warranted his entry into the PDES. 3. The advising psychologist in this case did not find a nexus between his misconduct and his mental health. The advising psychologist opined that it does appear his weak intellect made remediation of his misconduct unlikely through no fault of his own. 4. The applicant did not provide military or civilian medical documents that discuss his physical disability and/or mental state at his time of discharge from the Army. 5. The governing Army regulation provides the criteria for processing Soldiers for an undesirable discharge based on misconduct. Administrative discharge proceedings are absent from the applicant's record and his statement does not specifically address the misconduct that led to his separation from military service. 6. In the absence of evidence showing otherwise, his administrative discharge is presumed to have been administratively correct and in conformance with applicable laws and regulations. It is also presumed that the separation authority correctly determined his overall record of service did not rise to the level required for any characterization of service other than the characterization he received. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017831 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2