IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150011482 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: 25 October 2016 DOCKET NUMBER: AR20150011482 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: 25 October 2016 DOCKET NUMBER: AR20150011482 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, in effect, an upgrade of his general discharge (GD) to an honorable discharge (HD). 2. The applicant states he was suffering from depression which he expressed to his chain of command. He did not receive any help or rehabilitation for his issues. If he had received help he would still be a proud member of the armed forces. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 3 October 1996. 3. On 28 March 1997, he received non-judicial punishment for disobeying a lawful order. 4. On 24 June 1997, he was formally counseled for being apprehended by military authorities on 20 June 1997 and being charged with driving under the influence of alcohol, driving without a valid driver's license, and possession of alcohol by a minor. 5. On 25 June 1997, he was formally counseled for possession of alcohol and underage drinking. 6. On 29 July 1997, he received non-judicial punishment for underage drinking. 7. On 4 August 1997, he was given a mental status evaluation. The examiner determined his behavior was normal, he was fully alert and orientated, his mood was unremarkable, his thinking process was clear, his thought content was clear, and his memory was fair. The examiner further determined he was psychiatrically cleared for any administrative action deemed necessary by his chain of command. 8. On 27 August 1997, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b of AR 635-200 (Personnel Separations Enlisted Personnel) for a pattern of misconduct. The reasons for the proposed action were the applicant's numerous alcohol related incidents to include driving under the influence, assimilative crimes act (minors not to possess alcohol), and driving with no valid operator's license. The commander further notified the applicant he was recommending that he receive a GD. 9. The commander advised the applicant of his right to: * submit statements in his own behalf * obtain copies of documents that would be sent to the separation authority supporting his proposed separation action * consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period * waive any of these rights in writing * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 10. On 4 September 1997, after having consulted with counsel, he submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of AR 635-200 for misconduct. He requested military counsel. He did not submit statements in his own behalf. He acknowledged he may expect to encounter substantial prejudice in civilian life if a GD was issued to him. 11. On 4 September 1997, his commander recommended that he be separated from the Army prior to the expiration of his term of service with a GD. The commander stated he was recommending the applicant’s separation due to a demonstrated pattern of misconduct. He had numerous alcohol-related incidents to include DUI, assimilative crimes (minors not to possess alcohol), and driving without a valid operator's license. 12. On 17 September 1997, the separation authority approved the applicant's discharge under the provisions of chapter 14, paragraph 14-12b of AR 635-200 and directed he receive a GD. 13. On 24 September 1997, he applicant was discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 due to misconduct with a GD. 14. There is no evidence in his service record showing he sought assistance from his chain of command for issues involving alcoholism or depression or that he notified his chain of command that his disciplinary problems were a result of a medical condition. 15. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 16. A medical advisory opinion, dated 16 September 2016, from an Army Review Boards Agency (ARBA) psychiatrist stated, in part: a. There was no documentation of depression in the applicant's military medical records. His personnel records contain a DA Form 3822-R) Report of Mental Status Evaluation, dated 4 August 1997, which indicates he had A clear thought processes, unremarkable mood and was cleared for any administrative action deemed appropriate by command. His personnel records also contained his separation paperwork to include an SF 93 (Report of Medical History) and an SF88 (Report of Medical Examination). The applicant’s SF 93, dated 12 August 1997 contains a mark in the "Yes" block for "Depression or Excessive Worry." However, on his SF 88 completed on the same day by the examining physician stated the applicant had a normal psychiatric function. The physician also annotated the record with the notation "No homicidal/suicidal ideation." No post service medical notes documenting his mental state or psychiatric condition after leaving the military were provided for review. b. A review of his records indicated he met medical retention standards in accordance with Chapter 3, Army Regulation 40-501 and following the provisions set forth in Army Regulation 635-4- that were applicable to the applicant's era of service. c. Based on the information available for review at this time, there is insufficient evidence to determine if the applicant suffered from major depression while in the military. Based on the documentation currently available, there does not appear to be a nexus between major depression or any other behavioral health condition and the misconduct which led to his separation from the Army. 17. On 16 September 2015, the Case Management Division of the Army Review Boards Agency provided the applicant a copy of the advisory opinion for his review and comment. The applicant did not respond. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 14 of the regulation dealt with separation for various types of misconduct. Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct. That included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14. However, the separation authority may direct a GD if such is merited by the Soldier's overall record. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. DISCUSSION: 1. The applicant contends he was suffering from depression which he expressed to his command. 2. An ARBA medical advisor did not find a nexus between major depression or any other behavioral health condition and the misconduct which led to his separation from the Army. 3. It is noted that he received a GD rather than a discharge under other than honorable conditions which is normally considered appropriate in separations for misconduct. 4. He was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would have jeopardized his rights. 5. The evidence does not demonstrate that his service met the criteria for an honorable characterization 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) AR20150011482 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011482 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2