IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002962 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 IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002962 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. IN THE CASE OF: BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002962 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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states: a. He was severely injured by his second in command, a staff sergeant (SSG). The injury was due to the SSG's negligence and resulted from the SSG running up from behind him and kicking an object out from underneath him in the motor pool, causing a life-long spinal cord injury. Consequently, he has post-traumatic stress disorder (PTSD). b. There was a cover up; his name was forged and he was sent to Germany. c. His commissioner in Ohio had not filed his claim properly. He was advised not to apply for Department of Veterans Affairs (VA) benefits until he received his disability, which determined his injuries are service-connected and include a spinal cord injury and PTSD related to the injury. d. He has seen his commissioner for six years. During that time, he had taken his supplemental security income documentation in to show his claim was accepted for service-connected injuries including a spinal cord injury and diagnosed PTSD. He recently spoke with another service commissioner who informed him of a DD Form 214 (Certificate of Release or Discharge from Active Duty) he had no knowledge of. He questioned why this was not brought to his attention within the six-year time frame in which his previous commissioner was representing his case. No answer was given for withholding information and filing for a disability pension. e. He was also never advised by his commissioner that he could start an account online to check his status. Another veteran helped him set up an account and he found out over four months later that his claim was lost from 13 April 2015 to 17 July 2015. He went back to the office and his commissioner resubmitted it. f. His commissioner had no reply as to why he never looked at his status or even informed him that he could set up an account online to watch the progress of his status. If the service commissioner knew of his status, why was he so negligent about not having him file the necessary form before applying for VA benefits? He called Disabled American Veterans and they advised him to submit a Standard Form 180 (Request Pertaining to Military Records) to get all medical and other records that he needed to file with his case. Also, he was not advised to submit an application for the upgrade his discharge. g. Due to the injustice he received at his unit at Fort Sill, OK, he knows that there was a cover up regarding the severity of the injuries he sustained by another noncommissioned officer (NCO), which left him disabled for life. At the time of the injury, an SSG needed an inspection on a jeep that he drove and was responsible for. While he (the applicant) was conducting the inspection, he was standing on an object off the ground next to the jeep when the SSG came running from behind and kicked the object out from under him. He fell into the jeep grabbing with his right arm the mirror bracket gasping for air trying to call out for help. That is the last thing he remembers. He has no knowledge who took him to the hospital on post. He does not know or remember how long he was at the hospital or what was done to him. h. He has no records yet to tell him of the information that he has applied for. When he was brought back to his unit, he was coded with a tag tied to his uniform stating that he could do nothing. No walking with unit, no physical training, no standing in formation, and no long term standing. Basically, he was not capable of doing anything and was barely able to walk or stand up due to his spinal cord injury (herniated disc, upper neck and lower back). i. After returning to his unit, he started being harassed by a specialist five (SP5) and by an SSG. Right before the incident, they were good friends hanging with each other after work and eating dinner with their families. They tried to pull rank on him. He then went to a warrant officer to get legal help due to the harassment. At that time they threatened him with an Article 15 and the warrant officer, who was a lawyer, was called by his first sergeant (1SG). When the call was made the lawyer told the 1SG that if anything happened to him he would come down and strip the 1SG and the other sergeants of their rank. He heard the conversation very clear and the 1SG agreed that he would not be given an Article 15. j. Shortly after that, he was called out of formation and was told by his 1SG that he was going to be reassigned to Germany. He asked what was happening and was told that someone signed or forged paperwork to have him removed from his unit to cover up what was done to him. k. He had about a year left of his 3-year enlistment and he never signed any paperwork to go anywhere but to seek a medical discharge if anything. A sergeant first class (SFC) pulled him aside and told him that he was strictly by the book and was dedicated to the Army. He also told him that he knew he was being railroaded and that he could not stay there. The SFC advised him to take his leave and not to go to Germany and to turn himself in at a military installation in Southern California after staying out longer than his leave allowed. l. He was at Fort Ord, CA, for 3 or 4 days. He went in front of a colonel and asked about a medical discharge because of the injuries he sustained. The colonel asked him if he wanted to go back to his unit but he told the colonel he could not go back to his unit due to his injury. The colonel then stated he was not able to give him a medical discharge because it would take too long to obtain medical records so he offered him a general discharge, which he signed. The colonel also told him to look into having it upgraded to an honorable discharge. m. He just recently was sent a DD Form 214 that was not the same as the one he obtained at the Dallas VA. He has records from Florida, Texas, and Ohio from the doctors who knew of his injury. n. He believes that what was done to him was an injustice and that he deserves an honorable discharge with benefits approved for his injuries. He proved his case through social security and as soon as he receives all the documents he will send them in through the proper channels so he can go in front of a judge to show the wrongful things done against him. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2-1 (Personnel Qualification Record), and separation packet. 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 indicated on his DD Form 149 (Application for Correction of Military Records) that he is providing medical records in support of his application; however, no medical documentation was received with his application. 3. The applicant enlisted in the Regular Army on 10 February 1982. Upon the completion of his initial entry training, he was assigned to Fort Sill, OK. 4. Orders issued on 1 December 1983 directed his reassignment to Germany. His port call instructions show he was given a departure date of 11 January 1984. 5. A DA Form 31 (Request and Authority for Leave) shows he departed on leave on 9 December 1983. His scheduled return date was 11 January 1984. 6. His records show he failed to report to his port of embarkation for travel to Germany and was declared absent without leave (AWOL) on 11 January 1984. 7. A DA Form 4187 (Personnel Action) shows he surrendered to military authorities on 6 March 1984. 8. Court-martial charges were preferred against the applicant on 12 March 1984, for his AWOL offense. 9. The applicant consulted with legal counsel on 12 March 1984 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, due to the charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge. 10. In doing so, he acknowledged he was guilty of at least one of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged that: * he had not been subjected to any coercion whatsoever by any person with respect to his request for discharge * he was advised of the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an under other that honorable discharge 11. The separation authority approved his request for discharge on 30 March 1984 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 12. The applicant was discharged on 6 April 1984. The DD Form 214 he was issued confirms his service was characterized as under other than honorable conditions. 13. There is no evidence in the applicant's available record that shows he had a behavioral health diagnosis while he was serving on active duty. There is also no evidence of a physical injury or behavioral health condition that rendered him unfit to perform his military duties, or that may have contributed to the misconduct that led to his discharge. 14. There is no evidence that indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 15. By letter dated 27 December 2016, the Army Review Boards Agency (ARBA) Case Management Division (CMD) informed the applicant that in order to consider his application, he must provide medical evidence substantiating his contentions he sustained a spinal cord injury and PTSD; however, he did not respond. 16. During the processing of this case, a medical advisory opinion was obtained from the ARBA Medical Advisor/Psychologist. It states: a. The ARBA CMD requested a medical advisory opinion review of this case for medical condition(s) not considered during the applicant's medical separation processing. Specifically: (1) Does the available record reasonably support that PTSD or other boardable behavioral health conditions existed at the time of the applicant’s military service? (2) Did these conditions fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) warranting a separation through medical channels? (3) Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military? (4) In accordance with Title 10, U.S. Code, section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? (5) Any additional information deemed appropriate. b. Sources: AHLTA (no records); limited review of VA records through the Joint Legacy Viewer (JLV) (records unavailable); applicant supplied evidence submitted with his application and records supplied in file. c. On an AWOL Deserter Data Sheet, dated 8 March 1984, the interviewer described the applicant as offering the following to put his AWOL in context. First, the applicant enlisted in the Army because of family influence. Second, he went AWOL because he did not want to go to Germany. Third, he wanted to be discharged because he believed he was unsuitable for further military service. Fourth, he had returned to resolve his AWOL. Fifth, he had been working in construction as a laborer during his AWOL. d. His health records from active duty have no mental health diagnoses, though one note on 26 April 1983 said he complained of being depressed for four months after his wife left him. No diagnosis was made for this not untypical reaction. Medical notes also mentioned lower back pain; the sole explanation offered was lifting a rucksack in 1982 but that seemed to have resolved before lower back pain returned. The back pain complaints in the available records made no reference to being caused by having a seat kicked out from under him. e. The applicant is now asking for an upgrade of his discharge based on his allegation that a SSG kicked a seat out from under him, thereby causing him a "spinal cord injury" and "PTSD" as a consequence of that injury. There is no corroboration in the records of his account of his back pain. In the JLV, he has no current VA service-connected disability percentage. He does have diagnoses on his active VA problem list that included depression; bipolar II; sedative, hypnotic, or anxiolytic abuse; cannabis dependence; and anxiety. f. In a note on 29 August 2005, a psychiatric resident (not countersigned by psychiatrist) gave him a diagnosis of bipolar I disorder after he presented to the resident claiming that he and his wife believed he was bipolar. Nothing in the note demonstrated a history of either a manic or hypomanic episode. The note also is remarkable for including the phrase "Does not meet criteria for PTSD" in response to a negative screen for PTSD. Also, in a 29 August 2005 session the psychiatric resident indicated the applicant was a "fairly good historian"; however, he told the resident, according to the note, that he had an honorable discharge, which is false. g. He could find no diagnosis of PTSD in the applicant’s JLV records or any other records available. PTSD was a recognized diagnosis at his time of service. Based on available records, he did not have a mitigating mental health condition at the time of his misconduct. h. In regard to the referral questions, (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; (b) he did meet mental-health standards in accordance with Army Regulation 40-501 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation); (c.) available case material did not support the existence of a mitigating mental health condition at the time of his misconduct; (d.) available records did not include a separation medical exam required by Title 10, Section 1177; however this is not a requirement for his type of discharge; (e.) based on available behavioral-health evidence there is insufficient evidence to mitigate the applicant’s behavior based on PTSD, traumatic brain injury, bipolar disorder, depression, or other behavioral-health conditions. i. Conclusions: (1) The applicant did meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the his era of service. (2) It is unknown to what degree the applicant’s mental-health conditions were considered at the time of his discharge from the Army. (3) A review of available documentation did not discover evidence of a mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. There was insufficient mental health reason to change the character of the applicant’s discharge. 17. The medical advisory opinion was forwarded to the applicant to allow him the opportunity to submit additional comments, evidence, or a rebuttal. He did not respond. 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. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. DISCUSSION: 1. The evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. By requesting discharge, he admitted he was guilty of the charge against him that authorized the imposition of a bad conduct or dishonorable discharge. 2. The evidence further shows his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 3. The applicant's record of indiscipline included a violation of the UCMJ that resulted in court-martial charges. The separation authority determined his service did not rise to the level required for a general or an honorable discharge. 4. The applicant contends he was suffering from PTSD and other physical medical conditions during his active duty service; however, there is no evidence in his available record and he failed to provide any evidence that shows he was suffering from a behavioral health condition, or any other medical conditions, during his active duty service that warranted special consideration. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002962 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002962 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2