BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160001852 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: 13 July 2017 DOCKET NUMBER: AR20160001852 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: 13 July 2017 DOCKET NUMBER: AR20160001852 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 her general discharge under honorable conditions. 2.  The applicant states she was both physically and mentally ill during her service. She was treated with disciplinary action instead of medical care. She suffers from mental as well as physical illnesses and she is 100-percent disabled. 3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision and disability letters. 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, and 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 21 November 1989 and held military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist). She served in Germany from 24 July 1990 to 20 April 1992. 3.  On 29 April 1991, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order. Her punishment consisted of reduction to E-2, suspended forfeiture of pay, and extra duty. 4.  On 20 February 1992, she again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful in language toward a noncommissioned officer. Her punishment consisted of reduction to E-1, forfeiture of pay, and extra duty and restriction. 5.  On 7 April 1992, the applicant's immediate commander notified her of his intent to initiate separation action against her for misconduct in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The specific reasons cited were the applicant's pattern of misconduct consisting of failure to repair, two counts of disrespect, and suspension of her check cashing privileges (second offense). The commander recommended the issuance of a general discharge. 6.  The applicant acknowledged receipt of the commander's intent to separate her. She consulted with legal counsel who advised her of the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on future enlistments or reenlistments, the possible effects of this discharge, and the procedures/rights available to her. She waived consideration of her case by a separation board and/or a personal appearance before a separation board (she did not have 6 years of total service) and elected not to submit a statement. She acknowledged she understood that: * she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her * she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions 7.  The applicant's immediate commander initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct. Her intermediate commander recommended approval with the issuance of a General Discharge Certificate. 8.  On 17 April 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, with characterization of her service as under honorable conditions. The applicant was accordingly discharged on 21 April 1992. 9.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct. She completed 2 years, 5 months, and 1 day of active service. She was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar. Her service was characterized as under honorable conditions (general). 10.  There is no indication she petitioned the Army Discharge Review Board for a review of her discharge within that board's 15-year statute of limitations. 11.  Upon request, the applicant provided the following additional medical evidence in support of her application: a.  VA statement, dated 30 September 2015, indicating she is being seen by her primary care physician at the Atlanta VA clinic and lists several of her physical medical conditions (gastritis, acid reflux, and biliary dyskinesia). Her doctor attests to the fact she is unemployable based on her medical conditions; b.  VA statement, dated 25 September 2015, indicating she is being seen by her primary care physician at the Atlanta VA clinic and listing several of her mental health conditions (diagnoses of bipolar disorder II, generalized anxiety disorder, dysthymia, post-traumatic stress disorder (PTSD) (non-combat related), depression, and somatoform disorder); and c.  VA letter, dated 25 September 2015, wherein a clinical psychologist explains the applicant's mental status symptoms and her ongoing psychotherapy treatment. 12.  She provided a VA Rating Decision, dated 7 October 2015, showing she was awarded service-connected disability entitlement due to individual unemployability. She also provided summary letters from the VA. 13. On 19 April 2017, the Army Review Boards Agency medical advisor/ psychologist rendered an advisory opinion wherein he stated: a.  The applicant's DD Form 214 shows she was discharged due to pattern of misconduct. The medical and personnel records reviewed included the evidence she provided, a limited review of VA records through the Joint Legacy Viewer (JLV) and her personnel records. b.  Prior to her separation, she received a medical examination on 25 February 1992 and a mental status examination on 8 March 1992. Neither of her these examinations described serious health problems. She did not have a restrictive profile rating and was found fit for duty or separation with no requirement to enter the medical evaluation system. At the time of her medical examination, she complained of being nervous and having trouble sleeping, and that she was worried about her situation. c.  Records showed she had a General Technical (GT) score of 97. She was disqualified from an initial MOS of 76C (Equipment Records and Parts Specialist) for "academic failure," but completed the qualifications for MOS 76P. d.  The evidence she submitted and corroborated in the JLV shows she has a current VA service-connected disability rating of 80 percent with 70 percent for major depressive disorder with anxious distress. The JLV also showed diagnoses of bipolar II, generalized anxiety disorder, dysthymia, PTSD (non-combat related), and depression. She also struggles with homelessness and economic problems. The JLV shows a number of physical problems as well as mental problems. However, the available records did not establish, or come close to establishing, an onset of her psychiatric problems at the time of her misconduct and subsequent discharge. Thus the evidence is insufficient to support an upgrade of her discharge by reason of a mental health condition. e.  The applicant did meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. The applicant's mental health conditions were adequately assessed at the time of her discharge. A review of available evidence did not discover evidence of mental health illness that bears on the character of and narrative reason for her discharge. A causal nexus between her misconduct and mental health was not discovered. 14.  The applicant was provided a copy of this advisory opinion for her review and rebuttal. She did not respond. REFERENCES: 1.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b.  Paragraph 3-7a states 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. 2.  On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from individuals who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider to determine if it would be appropriate to upgrade the characterization of the applicant's service. 3.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by her failure to repair, disrespect, and suspension of her check cashing privileges. Based on her misconduct, her chain of command initiated separation action against her. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2.  A medical review of her case concluded that she met medical retention standards in accordance with AR 40-501 and her mental health conditions were adequately assessed at the time of her discharge. A review of available documentation at the time of her service in 1992 did not discover evidence of mental health diagnoses that bears on the character of and narrative reason for her discharge. A causal nexus between her misconduct and her mental health was not discovered. 3.  Based on her record of indiscipline, her service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The separation authority did not consider her service to have met the criteria generally accepted for an honorable character of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001852 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001852 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2