IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009521 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 May 2016 DOCKET NUMBER: AR20150009521 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 to amend the decision of the Army Board for Correction of Military Records as set forth in Docket Number AR20090021523 on 17 June 2010. ___________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 May 2016 DOCKET NUMBER: AR20150009521 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: The applicant defers to counsel for submission of his request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision set forth in Docket Number AR20090021523 on 17 June 2010. a. Counsel requests the applicant's under other than honorable conditions discharge be upgraded to an honorable discharge; b. Counsel requests correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his narrative reason for separation as "Secretarial Authority" instead of "Misconduct – Frequent Incidents of a Discreditable Nature"; c. Counsel requests the applicant be granted a medical disability separation. in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-33 (Anxiety, somatoform, or dissociative disorders) and 3-39 (Spine, scapulae, ribs, and sacroiliac joints); and d. Counsel requests the applicant be granted a personal appearance before the Board. 2. Counsel states: a. It is in the interest of justice that the Board give full consideration to the applicant's request based upon new compelling facts and argument. Specifically, the applicant's Standard Form (SF) 93 (Report of Medical History), dated 13 January 1976, indicates he had previously attempted suicide. His mental health at the time was made worse by the fact that his father had committed suicide on 21 July 1975, just six months prior to his enlistment. Army Regulation 40-501 (Standards of Medical Fitness) clearly provides that a history of suicidal behavior disqualifies an individual from enlisting to serve on active duty with the U.S. Army. b. While on active duty the applicant experienced an accident in the line of duty. His injuries from this accident would later require medical attention from the Department of Veterans Affairs (VA), from which he was diagnosed with having a cerebrovascular accident and post-traumatic stress disorder (PTSD). c. By the time of the applicant's enlistment, he developed a problem with alcohol, which was exacerbated by his military service. Later in his young life, he accepted this problem and became an active member of the twelve step program of Alcoholics Anonymous. Although the applicant served on active duty for nearly four years, his enlistment from the beginning was invalid and he should not have been enlisted due to his young age and mental history. 3. Counsel provides a legal brief, dated 18 May 2015, the ABCMR Record of Proceedings in Docket Number AR20090021523, dated 17 June 2010, and the following documents arranged chronologically: * his father's Certificate of Death, dated 21 July 1975 * Standard Form 93 (Report of Medical History), dated 13 January 1976 * DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 19 January 1976 * DA Form 2496 (Disposition Form), dated 1 November 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 21 December 1979 * progress notes from the VA's Veterans Health Information Systems and Technology Architecture (VISTA) database, dated between November and December 2008 * character reference letters and 3 witness affidavits, dated between July 2008 and November 2014 * Phi Theta Kappa Certificate, dated 29 October 2014 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090021523 on 17 June 2010. 2. The applicant, via counsel, provides new evidence as outlined at paragraph 3 above and a new argument in support of his request. This new evidence was not previously considered by the Board; therefore, it warrants consideration by the Board at this time. 3. On 13 January 1976, the applicant underwent an enlistment physical, wherein he acknowledged a prior suicide attempt as documented on the corresponding Standard Form 93. 4. On 19 January 1976, the applicant enlisted in the Regular Army, with his mother's parental consent, at 17 years and 9 months of age. 5. His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 7 April 1976, for failure to obey a lawful order * 4 November 1976, for four specifications of failing to repair * 7 February 1977, for wrongful possession of marijuana * 9 February 1978, for failure to go to his appointed place of duty * 31 March 1978, for intentionally altering sick slips * 11 December 1978, for failure to go to his appointed place of duty * 5 April 1979, for violating a lawful regulation * 19 July 1979, for failure to repair 6. His record shows his unit reported him as absent without leave (AWOL) from on or about 26 June 1979 through on or about 1 July 1979. 7. On 2 October 1979, the applicant's commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, based on his lengthy record of misconduct. 8. On 3 October 1979, the applicant underwent a mental status evaluation for the purposes of administrative separation. A DA Form 3822-R (Report of Mental Status Evaluation) shows the examining physician noted the following: * his behavior was normal * he was fully alert and oriented * his mood was level and his thinking process was clear * his thought content was normal and his memory was good * he had no significant mental illness and was mentally responsible * he was able to distinguish right from wrong and able to adhere to the right * he was psychologically cleared for administrative actions 9. On 1 November 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of an under other than honorable conditions discharge, and the rights available to him. He waived consideration of his case by, and personal appearance before, an administrative separation board and elected not to submit statements in his own behalf. 10. On 10 December 1979, the appropriate authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an under other than honorable conditions discharge. 11. On 21 December 1979, the applicant was discharged from the Army. His DD Form 214 shows in: * Item 23 (Type of Separation), the entry "Discharge" * Item 24 (Characterization of Service), his service was characterized as "Under Other Than Honorable Conditions" * Item 25 (Separation Authority), he was discharged under the authority of "Para 14-33b(1), AR [Army Regulation] 635-200" * Item 26 (Separation Code), the entry "JKA" * Item 28 (Narrative Reason for Separation), the entry "Misconduct – Frequent incidents of a discreditable nature with civil or military authorities" 12. The applicant's military health records are not available for review in this case. However, a Standard Form 88 (Report of Medical Examination), documenting his separation physical examination, shows he was physically qualified for separation and his PULHES factors were "111111." 13. There is no evidence in his available record and he provides no evidence that shows while serving on active duty he: a. experienced an accident that resulted in a line of duty investigation, or that resulted in a line of duty determination; or b. was treated for, or was diagnosed with, any medical or mental condition or disorder (including PTSD (emphasis added)) that prevented him from performing his assigned duties or that required his referral to either a medical evaluation board (MEB) or physical evaluation board (PEB) in accordance with the Physical Disability Evaluation System (PDES). 14. On 12 August 1983, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge. The ADRB determined his discharge was proper and equitable; consequently, his request for relief was denied. 15. Through counsel, the applicant provides: a. A State of New Hampshire death certificate that shows his father died as a result of a self-inflicted gunshot wound on or about 21 July 1975. b. Progress notes from the VA, with dates ranging from 25 November 2008 to 19 December 2008. In general, these documents show the applicant reported chronic back and neck pain, as well as several other injuries incurred over the years. A computerized problem list noted 39 conditions or ailments as active problems. He did not provided documentation that shows he has been awarded service-connected disability by the VA. c. Character reference letters attesting to his educational endeavors, community involvement and active participation in the Alcoholics Anonymous program. REFERENCES: 1. Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, provides that the ABCMR will decide cases on the evidence of record. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Applicants do not have a right to a hearing before the ABCMR; however, the ABCMR Director or the Board may grant a formal hearing whenever justice requires. 2. Army Regulation 40-501 governs medical fitness standards for induction, enlistment, and appointment, including officer procurement programs. a. Paragraph 2-27(j) of the regulation currently in effect provides that a history of suicidal behavior, including gesture(s) or attempt(s), or history of self-mutilation, is a disqualifying factor for enlistment. b. Chapter 2 of the regulation in effect at the time did not address attempted suicide as a disqualifying factor for enlistment. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply 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. This regulation provides that: a. The mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness. 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. b. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. c. Chapter 4 contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 4. 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. Paragraph 5-3 provides that the separation of enlisted personnel under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Such authority may be given either in an individual case or by an order applicable to all cases specified in such order. d. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 5. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators (SPD)) provides that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. According to this regulation, SPD code "JKA" is used to identify Soldiers who are separated under the provisions of Army Regulation 635-200, paragraph  14-33b (1), by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities. DISCUSSION: 1. Through counsel, the applicant requests an upgrade of his under other than honorable conditions discharge; correction of his DD Form 214 to show his narrative reason for separation as "Secretarial Authority"; permanent disability separation in the alternative; and a personal appearance before this Board. 2. Counsel contends the applicant was not qualified to enlist based on his age and mental history. Counsel contends the applicant's enlistment into military service is void because of his admitted history of suicide attempts. a. While he was 17 years of age when he enlisted; age is not deemed to be a sufficiently mitigating factor, since there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their periods of military service. b. The applicant's available medical records do not address his mental state at the time of his enlistment; however, he did undergo a mental status evaluation for the purposes of administrative separation. His Report of Mental Status Evaluation shows the examining physician noted: * his behavior was normal * he was fully alert and oriented * his mood was level and his thinking process was clear * his thought content was normal and his memory was good * he had no significant mental illness and was mentally responsible * he was able to distinguish right from wrong and able to adhere to the right * he was psychologically cleared for administrative actions c. The regulation in effect at the time of the applicant's enlistment did not address suicidal behavior, gesture(s), or attempt(s) as a disqualifying factor for enlistment. Additionally, there is no evidence of other mental health issues present at the time of the applicant's enlistment. 3. The evidence of record shows the applicant continually demonstrated he could not or would not meet acceptable standards required of enlisted personnel, as evidenced by repeated instances of NJP and a record of misconduct. Accordingly, his commander initiated separation action against him. 4. The applicant's separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. Based on his history of misconduct, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel and his overall service does not rise to a fully honorable characterization of service. 5. The applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities. Absent the multiple instances of misconduct during his period of military service, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct - frequent incidents of a discreditable nature with civil or military authorities" and the appropriate separation code associated with this discharge is "JKA," which is correctly shown on his DD Form 214. 6. The evidence of record does not show the applicant was treated for or diagnosed with any mental or medical condition that permanently prevented him from performing his assigned duties, of such severity as to warrant his entry into the PDES. Absent such a condition, there would be no basis for granting him retirement by reason of physical disability. 7. Secretarial plenary separation authority is exercised sparingly. Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interest of the Army. There is no evidence of error in his assigned reason for separation. As such, there is no basis to change his reason for separation to Secretarial Authority. 8. While his good post-service conduct is noted and commended, it does not mitigate or excuse his conduct that resulted in his under other than honorable conditions discharge. 9. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009521 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009521 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2