IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003924 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: 10 October 2017 DOCKET NUMBER: AR20160003924 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: 10 October 2017 DOCKET NUMBER: AR20160003924 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 his general discharge under honorable conditions to honorable. 2. The applicant states: a. His discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. He had mental health issue and he did not receive any care. b. The only time the Department of Veterans Affairs (VA) gave notice to his mental health was after he was seen by civilian doctors. He would like the VA to acknowledge his mental health issue and assign him a disability rating greater than 0 percent. 3. The applicant provides page 1 of a 3-page medical record/progress note, dated 18 March 2015. 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 7 December 1979 for a period of 3 years. 3. His records contain Fort Carson Forms 169 (Record of Individual Counseling) showing he was counseled in writing between 25 June 1980 and 25 July 1980 for: * missing physical training * improving his appearance * missing wake-up call/sleeping 4. On 14 January 1981, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from on or about 21 September 1980 to on or about 19 October 1980. 5. His records contain DA Forms 4187 (Personnel Action) showing his duty status as AWOL effective 19 September 1980, he was confined by civilian authorities effective 16 October 1980, and he returned to military control (present for duty) effective 19 November 1980 (81 days). 6. On 14 January 1981, he underwent a mental status evaluation and he was found mentally responsible and cleared for administrative action deemed appropriate by his commander. A history of substance abuse was noted. 7. On 20 January 1981, he underwent a physical separation examination and was found qualified for separation. Item 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination), dated 20 January 1981, shows he was rated normal. Item 11 (Have you ever had or have you now) of his Standard Form 93 (Report of Medical History), dated 20 January 1981, shows he marked "No" for depression or excessive worry. 8. On 6 April 1981, he was notified of his pending discharge for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to apathy. 9. He consulted with counsel, waived consideration of his case by a board of officers, and waived a personal appearance. He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable were issued to him. He elected to submit a statement on his behalf. He stated when he joined the Army he thought it would be different than what people told him. He feels he and the Army would be better off without one another. 10. On 28 July 1981, the separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate. 11. He was discharged under honorable conditions on 17 August 1981 under the provisions of Army Regulation 635-200, paragraph 13-5b(1), for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively. He completed 1 year, 6 months, and 9 days of total active service with 81 days of lost time. 12. There is no evidence showing he was diagnosed with a mental health condition prior to his discharge. 13. On 28 September 1983, the Army Discharge Review Board denied his request for a discharge upgrade to honorable. 14. He provided page 1 of a 3-page medical record/progress note, dated 18 March 2015, showing he was treated for a right leg condition. His past medical history noted anxiety and attention deficit hyperactivity disorder. 15. An advisory opinion was rendered by the Army Review Boards Agency Clinical Psychologist, dated 21 November 2016, wherein he stated: a. The applicant's available records do not reasonably support him having had a boardable medical condition at the time of his discharge. b. He met medical retention standards and did not warrant a separation via medical channels. c. No evidence was provided of a mitigating behavioral health diagnosis. d. He did not provide sufficient evidence to support an upgrade to his discharge based on behavioral health considerations. e. His medical conditions were duly considered during medical separation processing. f. A review of available documentation did not find evidence of a medical disability or conditions which would support a change to the character or reason for his discharge. 16. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 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. Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for separation of individuals for unsuitability whose records evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. DISCUSSION: 1. The applicant's contention that he had mental health issues at the time of his service was carefully considered. However, there is no evidence showing he was diagnosed with a mental health condition prior to his discharge. He underwent a mental status evaluation on 14 January 1981 and he was found mentally responsible. On 20 January 1981, he underwent a physical separation examination and was found qualified for separation. Item 42 (Psychiatric) of his Standard Form 88, dated 20 January 1981, shows he was rated normal. Item 11 (Have you ever had or have you now) of his Standard Form 93, dated 20 January 1981, shows he marked "No" for depression or excessive worry. 2. The medical advisor stated his records did not reasonably support him having had a boardable medical condition at the time of his discharge and there was no evidence of a mitigating behavioral health diagnosis. 3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. 4. The type of discharge directed and the reasons were appropriate considering all the facts of the case. 5. Although he contends his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action, his record of service included adverse counseling statements, one nonjudicial punishment, and 81 days of lost time. 6. His contention he would like the VA to acknowledge his mental health issues and assign him a disability rating greater than 0 percent was noted. However, any concerns he may have regarding his disability rating should be directed to the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003924 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003924 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2