BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150000035 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: 19 May 2016 DOCKET NUMBER: AR20150000035 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: 19 May 2016 DOCKET NUMBER: AR20150000035 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 correction of the narrative reason for his separation from misconduct to medical (bipolar disorder and post-traumatic stress disorder (PTSD)) and reinstatement of his rank/grade to sergeant (SGT)/E-5. 2. The applicant states after two enlistments and a deployment to Korea during which he experienced the worst monsoon in 200 years, plus the introduction of anthrax to his body, these factors affected him mentally. He chose to self-medicate for bipolar and PTSD issues. His unit was in ramp-up status for Kosovo. He was a noncommissioned officer (NCO) and wanted to make the military his life but his mental status deteriorated. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NCO Evaluation Reports * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 28 June 2000 * DA Form 2627, dated 18 June 2002 * DA Forms 4856 (General Counseling Form) * Army Discharge Review Board (ADRB) decision * VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) * January 2005 VA rating decision * October 2013 VA rating decision * 2014 VA progress notes * Correspondence with the VA * Internet printouts about vaccinations * DA Form 4700 (Medical Record-Supplemental Medical Data) * Report of Medical History * Report of Medical Examination * Previous letter from the Army Review Boards Agency * 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, 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. Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army (RA) on 29 April 1994 and he held military occupational specialty 63H (Track Vehicle Repairer). He was advanced to specialist (SPC)/ E-4 on 4 July 1995 and to sergeant (SGT)/E-5 on 1 June 1996. 3. He reenlisted on 4 September 1996. 4. On 6 December 1996, at Fort Riley, KS, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for wrongfully communicating a threat to three Soldiers to kill everyone. His punishment consisted of a reduction to SPC/E-4 and a suspended forfeiture of pay. 5. On 3 April 1997, while still married, his commander reprimanded him for improper conduct after he committed adultery and publicly displayed affection with women who were not his wife. 6. He was promoted back to SGT/E-5 on 1 April 1998. 7. Following his assignment at Fort Riley, he served in Korea from May 1998 to May 1999, and following his Korea tour, he was reassigned to the 3rd Forward Support Battalion, Fort Stewart, GA. 8. At Fort Stewart, his chain of command frequently counseled him for various infractions, including: * leaving his appointed place of duty as Battalion Staff Duty NCO without authority * not checking behind his Soldiers * physical altercation/assault * failing to follow directions 9. On 28 June 2000, at Fort Stewart, he accepted NJP under the provisions of Article 15 of the UCMJ for unlawfully striking another Soldier in the face with a 12-inch socket extension and his fist. His punishment consisted of a reduction to SPC/E-4, a forfeiture of pay, and extra duty. He appealed his punishment but the next higher commander denied his appeal. 10. On 14 May 2002, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 11. On 18 June 2002, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana. His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of pay, and extra duty and restriction. He also appealed this punishment but the next higher commander denied his appeal. 12. His complete separation packet is not available for review with this case. However, it appears on or around 1 August 2002, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense, abuse of illegal drugs. 13. His records contain his acknowledgement memorandum. This document shows he acknowledged receipt of the commander's intent to separate him. He waived his right to consult with counsel. His commander advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. He waived consideration of his case by an administrative separation board and/or personal appearance before an administrative board. He also elected not to submit a statement on his own behalf. He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he 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. 14. In connection with this separation action, the applicant underwent a mental evaluation and a separation physical: a. His mental status evaluation, dated 1 August 2002, at the Division Mental Health Service, Fort Stewart, indicated the applicant had the mental capacity to understand and participate in [chapter] proceedings, was mentally responsible, met retention standards of AR 40-501 (Standards of Medical Fitness), and was psychiatrically cleared for administrative actions. b. His separation physical, dated 5 August 2002, documented the results of his psychiatric clinical evaluation as abnormal. It identified anxiety and depression and noted that a behavioral health (BH) provider was evaluating him. The records from the BH evaluation in question are not available for review. The examiner found him qualified for separation. 15. Subsequent to this acknowledgement, it appears the immediate commander initiated separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200. 16. On 28 August 2002, a military attorney reviewed the separation packet and found it legally sufficient. 17. The separation authority's approval memorandum is not available for review. However, his records contain: a. Orders 254-0003, issued by Headquarters, 3rd Infantry Division (Mechanized), Fort Stewart, on 11 September 2002 ordering him to report to the U.S. Army transition point on 18 September 2002 for separation processing. b. DD Form 214 that shows he was discharged by reason of misconduct-commission of a serious offense in the rank/grade of PFC/E-3 on 18 September 2002 under the provisions of paragraph 14-12c of AR 635-200 with a character of service of under honorable conditions. This form shows he completed 8 years, 4 months, and 20 days of creditable active service. Additionally, his DD Form 214 shows in: * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Army Achievement Medal (3rd Award), National Defense Service Medal (2nd Award), NCO Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Driver and Mechanic Badge * item 26 (Separation Code) – "JKK" * Item 28 (Narrative Reason for Separation) – "Misconduct" 18. On 30 March 2012, the ADRB reviewed his separation processing but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 19. He provides his January 2005 and October 2013 VA ratings decisions that show he was awarded service-connected disability for schizoaffective disorder, major depression with psychosis (claimed as bipolar disorder) as well as: * Status post right knee arthroscopy with residual right lateral collateral ligament laxity * Intermittent tinea, bilateral hand * Tenosynovitis, left wrist * Scar left chest * Scars, status post right knee arthroscopy * Bilateral tinea pedis * Callus fifth metatarsal 20. A clinical psychologist reviewed the applicant's case in an effort to determine if his discharge was due to information/diagnosis of bipolar disorder and/or PTSD contained in documentation and resulted in his discharge. The clinical psychologist summarized the findings on 30 March 2016 as follows: a. The references used are the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision; AR 40-501, Standards of Medical Fitness, 14 December 2007 with revision, dated 4 August 2011; and AR 635-200, dated 6 June 2005 with revision, dated 6 September 2011. b. The applicant enlisted in the U.S. Army on 29 April 1994, where he served as a Track Vehicle Repairer for over 8 years. On 18 September 2001, he was discharged under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c (2) (Misconduct, Abuse of Illegal Drugs) with a characterization of service of general under honorable conditions. c. He submitted an application requesting an upgrade in the characterization of service on his DD Form 214 from general under honorable conditions to honorable. He additionally requested a change in his narrative reason for separation from misconduct to medical discharge for PTSD and bipolar disorder. He alleges he was awarded 70 percent service-connected disability for schizoaffective disorder, major depression with psychosis by the VA effective 19 September 2002. The VA also granted individual unemployability at this time. His disability rating was increased to 100 percent effective 4 June 2013. d. His history of misconduct includes wrongfully using marijuana (on/about 15 April 2002 - 4 May 2002). He received a Command Directed Behavioral Health Evaluation (CDBHE) for administrative separation, dated 2 August 2002. At that time, he was found to meet medical retention standards of AR 40-501, Chapter 3 and deemed mentally responsible. Consequently, he was psychiatrically cleared for administrative separation. e. A Report of Medical Examination, dated 5 August 2002, documented the results of his psychiatric clinical evaluation as abnormal. Specifically, anxiety and depression were identified and it was noted that he was being evaluated by a BH provider. The records from the BH evaluation in question are not available for review. He was medically cleared for separation. f. On or about 2002 (within a year following his discharge from military service), the VA established his BH condition as directly related to military service. Although his current diagnosis of schizoaffective disorder was not documented during his time in military service, there was sufficient evidence available to conclude that his symptoms were psychotic in nature. The VA also opined that he evidenced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This impairment in functioning was determined to be attributed to factors including his suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure or irrelevant speech; near-continuous panic or depression; impaired impulse control such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances including work or a work-like setting; and inability to maintain effective relationships. g. Taking into consideration the documentation available for review, currently there is insufficient evidence to reasonably conclude that, at the time of his discharge from active duty, the applicant failed medical retention standards for a boardable BH condition, thereby warranting disposition via a medical evaluation board. However, it should be noted that his documented diagnosis of anxiety during service might be considered a mitigating factor for the wrongful use of marijuana. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record. 2. Paragraph 3-7(a) of AR 635-200 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. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code "JKK" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of AR 635-200 due to misconduct – commission of a serious offense (abuse of illegal drugs). DISCUSSION: 1. With respect to the character of service: a. The complete separation packet is not available for review with this case. However, the applicant's records contain sufficient documentary evidence that shows the applicant committed a serious offense in that he tested positive for illegal drugs. Accordingly, his chain of command initiated separation action against him. b. The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline c. Based on his overall record of indiscipline, which included his NJP for assault, negative counseling statements, and abuse of illegal drugs, his service for the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His service did not rise to the level required for an honorable discharge. 2. As for the narrative reason, the applicant's narrative reason for separation was assigned because he was separated under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-commission of a serious offense. Absent the illegal drug abuse, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his commission of a serious offense. The only valid narrative reason for separation permitted under that paragraph is "Misconduct" and the appropriate separation code associated with this discharge is "JKK," which is correctly shown on his DD Form 214. 3. With respect to his rank/grade: a. The applicant was promoted to SGT/E-5 on 1 June 1996. However, on 6 December 1996, he accepted NJP for wrongfully communicating a threat. His punishment consisted of a reduction to SPC/E-4. He was then promoted back to SGT/E-5 on 1 April 1998. However, on 28 June 2000, he accepted NJP for unlawfully striking another Soldier. His punishment consisted of a reduction to SPC/E-4. b. On 18 June 2002, he again accepted NJP for wrongfully using marijuana. His punishment consisted of a reduction to private first class (PFC)/E-3. He held the rank/grade of PFC/E-3 at the time of his separation. There is no indication he was promoted back to SPC/E-4 between the date he was reduced to E-3 and the date he was discharged. His DD Form 214 correctly lists his rank/grade of PFC/E-3 and he provides no evidence showing this to be incorrect. 4. As for his BH: a. After the applicant's discharge from active duty, the VA established a relationship between his BH condition and his military service. Although his current diagnosis of schizoaffective disorder was not documented during his time in military service, there was sufficient evidence available to conclude that his symptoms were psychotic in nature. The VA also opined that he evidenced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. b. As noted by the clinical psychologist, various factors contributed to his functioning impairment. They include his suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure or irrelevant speech; near-continuous panic or depression; impaired impulse control such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; difficulty adapting to stressful circumstances including work or a work-like setting; and inability to maintain effective relationships. c. However, there is insufficient evidence to reasonably conclude that, at the time of his discharge from active duty, the applicant failed medical retention standards for a BH condition that would have required medical board action or warranted disposition through a medical evaluation board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000035 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000035 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2