BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160001283 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: 10 August 2017 DOCKET NUMBER: AR20160001283 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. The Board notes that on 9 September 2015 the Army Discharge Review Board upgraded the applicant's characterization of service to under honorable conditions (general). Further relief is not merited. ______________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: 10 August 2017 DOCKET NUMBER: AR20160001283 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, correction of his records to show he was diagnosed with unfitting medical conditions and honorably discharged. 2. The applicant states that he deployed to Iraq and served in combat in support of Operation Iraqi Freedom from March 2003 through August 2003. After he redeployed, he was not provided access to medical services to address his mental health condition. As a result, he began to self-medicate and abuse drugs, which led to violations of the Uniform Code of Military Justice (UCMJ) and his discharge for the good of the service in lieu of trial by court-martial. a. After he was discharged, he used his time to address his mental health issues and rebuild his life. The Army Discharge Review Board (ADRB) upgraded his discharge to general, under honorable conditions. b. He states that upgrade of his discharge will recognize his contributions and honorable service to the U.S. Army. It will also allow him to utilize the services, resources, and benefits of the Department of Veterans Affairs (VA). He adds that his goal is to be a social worker and help other veterans. 3. The applicant provides a self-authored statement (summarized above) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 4. On 26 October 2016, the Director, Case Management Division, Army Review Boards Agency (ARBA), notified the applicant that in order for the Army Board for Correction of Military Record (ABCMR) to consider his application, he must provide copies of the medical documents that support his mental health issues. A response was not received from the applicant. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 15 November 2001 for a period of 4 years. He was awarded military occupational specialty 19K (M1 Armor Crewman). a. He was advanced to private first class (E-3) on 1 September 2002. b. He served in Iraq in support of Operation Iraqi Freedom from 21 March 2003 to 26 August 2003. 2. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant, on 10 February 2005, for violation of the UCMJ, Article 112a (Wrongful use, possession, etc. of controlled substances), for at or near Fort Stewart, GA, wrongfully using marijuana, a schedule I controlled substance (three specifications) between on or about 11 January 2004 and 11 February 2004, between on or about 21 June 2004 and 21 July 2004, and between on or about 14 September 2004 and 14 October 2004. 3. On 11 February 2005, the applicant consulted with military legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions (UOTHC). He requested a general, under honorable characterization of service. b. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. c. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws d. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on the document. 4. The chain of command recommended approval of the applicant's request for discharge in lieu of trial by court-martial with an UOTHC character of service. 5. On 3 March 2005, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that he be furnished an UOTHC discharge. 6. The applicant was discharged under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial, on 22 March 2005. 7. On 12 March 2015, the applicant submitted an application to the ADRB for review of his discharge. 8. On 9 September 2015, the ADRB determined that the authority and reason for the applicant's discharge were proper. The board noted the chain of command attempted to assist the applicant in conducting himself and performing to Army standards by providing counseling; however, he failed to respond appropriately. The ADRB upgraded the applicant's character of service to general, under honorable conditions, voided his original DD Form 214, and issued him a new DD Form 214. 9. The applicant's DD Form 214 shows he entered active duty this period on 15 November 2001 and he was discharged on 22 March 2005 UP AR 635-200, chapter 10, in lieu of trial by court-martial, with an under honorable conditions (general) character of service. He had completed 3 years, 4 months, and 8 days of net active service during this period. 10. A review of the applicant's military service records failed to reveal any evidence that he was referred to the integrated disability evaluation system (IDES) for review by a Medical Evaluation Board or a Physical Evaluation Board. 11. In the processing of this case, an advisory opinion was obtained from the medical staff of the ARBA, dated 7 March 2017. a. The ARBA clinical psychologist reviewed the applicant's military personnel records and service treatment records. His electronic military medical records (AHLTA) were also reviewed and revealed no encounters. b. A review of the Joint Legacy Viewer revealed the VA granted him a service connected disability rating of 60 percent. His VA problem list included cannabis, abuse, other depressive disorder, and major depressive disorder. Post-traumatic stress disorder (PTSD) did not appear on his problem list and he had no psychiatric admissions in the VA. Given the available evidence, the ARBA clinical psychologist found that PTSD is a poor mitigation for the applicant's cannabis use, especially as the applicant admitted he was using it prior to his deployment to Iraq and the applicant also indicated that (in his view) he has PTSD as a result of his experiences in Iraq. c. The medical advisor found the available medical records do not support the applicant had a boardable medical condition during the period of service under review. The applicant met mental health standards in AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He added that PTSD was not a mitigating factor to change the applicant's character of service or the reason for his discharge. d. The ARBA clinical psychologist concluded the available documentation did not offer any evidence of mental health considerations that would bear on the character of service or on the reason for the applicant's discharge. 12. On 8 March 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the integrated disability evaluation system. 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 1 (General Provisions), paragraph 1-33 (Disposition through medical channels), provides that, except in separation actions under chapter 10 (Discharge in Lieu of Trial by Court-Martial), disposition through medical channels takes precedence over administrative separation processing. b. 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. A medical examination is not required. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. c. Chapter 3, 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. DISCUSSION: 1. The applicant contends, in effect, that his military service records should be corrected to show he was diagnosed with an unfitting medical condition(s) and honorably discharged based on physical disability. 2. The evidence of record shows a medical professional reviewed the applicant's available medical records and concluded that he met medical retention standards in accordance with AR 40-501, chapter 3, and the provisions of AR 635-40 that were applicable to the applicant's era of service. a. It is noted that the VA has granted the applicant service-connection for cannabis abuse, other depressive disorder, and major depression. b. The ARBA staff psychologist found no nexus between the applicant's mental health diagnoses and his misconduct that led to his discharge. 3. The evidence of record also shows the Army regulation governing active duty enlisted administrative separation processing provides that disposition of Soldiers through medical channels takes precedence, except in separation actions under AR 635-200, chapter 10. Based on the evidence of record, there is an insufficient evidentiary basis for correcting the applicant's records to show he was honorably separated based on an(y) unfitting medical condition(s). 4. The evidence of record shows that the applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. In addition, the type of discharge, narrative reason, and character of service shown on the applicant's reissued DD Form 214 are correct. 5. The evidence of record also shows the applicant was charged with committing an offense (three specifications), any specification that was (in itself) serious enough to warrant trial by court-martial. The applicant elected to request administrative discharge in lieu of trial by court-martial. a. The evidence of record shows an UOTHC discharge is normally considered appropriate for Soldiers discharged UP AR 635-200, chapter 10. b. Records show the period of service under review was characterized as under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001283 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001283 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2