IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150012580 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: 20 December 2016 DOCKET NUMBER: AR20150012580 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: 20 December 2016 DOCKET NUMBER: AR20150012580 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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect a general discharge under honorable conditions due to physical disability vice discharge under other than honorable conditions in lieu of trial by court-martial. 2. The applicant states his discharge was a result of mental illness due to schizophrenia. The resulting anger and hallucinations he experienced at the time of his discharge were a direct result of his mental illness. He would like restoration of his Department of Veterans Affairs (VA) medical benefits. 3. The applicant provides: * DD Form 214 covering the period 12 June 1964 through 26 September 1965 * DD Form 214 covering the period 27 September 1965 through 7 October 1971 * VA letter, dated 4 June 2015 * letter from a VA psychiatric nurse practitioner, dated 15 July 2015 * partial copy of his DA Form 20 (Enlisted Qualification Record) 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 12 June 1964. He was discharged on 26 September 1965 for the purpose of immediate reenlistment. The DD Form 214 he was issued covering this period shows his character of service was honorable. He reenlisted in the Regular Army on 27 September 1965. 3. Multiple DA Forms 268 (Report for Suspension of Favorable Actions) and a security clearance revocation memorandum in his records show: * he was charged with failing to report to his place of duty at the time prescribed on 2 August 1970 * he was charged with leaving his duty station with the intent to abandon the same on 3 August 1970 * he refused to accept punishment under Article 15 of the Uniform Code of Military Justice on 12 August 1970 and was pending special court-martial as a result * he was absent without leave (AWOL) beginning 1 September 1970 while pending special court-martial * he was charged with attempted rape on 13 September 1970 * he was charged with unlawful flight to avoid prosecution on 29 September 1970 and was placed under $50,000.00 bond in Lewiston, Idaho * he was dropped from the rolls and his Secret security clearance was revoked on 30 September * he was pending separation on 19 January 1971 in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, AWOL, Desertion, Conviction by Civil Court)) 4. His complete discharge packet is not in his available records for review. 5. His DD Form 214 covering the period 27 September 1965 through 7 October 1971 shows he was discharged under other than honorable conditions in accordance with Army Regulation 635-206, chapter 10, and assigned separation program number 284 (civil conviction). He completed 5 years, 10 months, and 24 days of net service during this period with 47 days of lost time. His permanent address at the time of his discharge is shown as the Idaho State Penitentiary. 6. His available service records do not contain documentation corroborating he was diagnosed or treated for any mental health condition during his Army service and they do not indicate: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his military occupational specialty (MOS) and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 7. He provided a letter from the VA, dated 4 June 2015, which states that after careful review of his records by the VA enrollment and eligibility staff, they were proposing termination of his VA health care benefits based on his discharge under other than honorable conditions. 8. He also provided a letter from a VA psychiatric nurse practitioner, dated 15 July 2015, which states the applicant was a patient of hers at the Yakima VA Community Outreach Clinic for the past 2 1/2 years. At the time of his first visit with her, he reported that he had been diagnosed as having major depression several years earlier and that he experiences auditory hallucinations and intense anger when his depression worsens or his stress level increases. Over the past 2 1/2 years, he reported that his mood was relatively stable and more positive than not on most days. During that time, she never witnessed him experiencing auditory hallucinations during any appointment with her, nor was his behavior in the office ever irritable or aggressive. He has consistently taken both antidepressants and antipsychotics while under her care and acknowledges they have been beneficial in helping him manage his mental health issues. 9. The Army Review Boards Agency clinical psychologist provided an advisory opinion on 14 October 2016 wherein she states: a. Military medical records indicated he faced court-martial charges for being AWOL on 1 September 1970. On 13 September 1970, he was charged with attempted rape and he was dropped from the rolls and considered a deserter as of 30 September 1970. His Secret security clearance was revoked by his command on 30 September 1970 due to security implications based on his unauthorized absence and pending administrative action. He was imprisoned in the Idaho State Penitentiary for an unknown amount of time. b. A VA medical note, dated 15 July 2015, indicated he was a patient at the Yakima VA Community Outreach Clinic for 2 1/2 years and received treatment for depression and auditory hallucinations. The medical provider noted no observation of the applicant experiencing auditory hallucinations, irritability, or aggressiveness. The medical provider indicated he exhibited a relatively stable mood and consistently took antidepressants and antipsychotics to manage his mental health symptoms. There is no definitive diagnosis of schizophrenia or other mental health condition, nor indication that symptoms of depression and/or auditory hallucinations are service connected. c. Based on a thorough review of his available medical records, there is no evidence the diagnoses of schizophrenia or any other behavioral health conditions existed during his military service or that his misconduct was mitigated by a behavioral health condition. The presence of potentially untreated schizophrenia during his time in service does not mitigate his actions, as the nature of schizophrenia, specifically reported as depressive symptoms, anger, and auditory hallucinations, are not reasonably related to the misconduct of unauthorized absences or attempted rape. Furthermore, the available medical evidence from the VA provided no conclusive diagnosis of schizophrenia and his mood was deemed to be relatively stable. His military records are void of any medical facts and circumstances that could have contributed to a behavioral health condition that mitigated his misconduct. 10. He was provided a copy of the advisory opinion on 17 October 2016 and given an opportunity to submit a rebuttal, but he did not respond. REFERENCES: 1. Army Regulation 635-206, in effect at the time, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and AWOL or desertion. a. An individual will be considered for discharge when it is determined that he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year. If initially convicted by civil authorities of an offense which involves moral turpitude, the individual will be considered for discharge regardless of the sentence received or maximum punishment permissible under any code. b. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case. c. For general provisions regarding separation, see Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile rating of "3" or "4" and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the medical evaluation board and the physical evaluation board. The purpose of the medical evaluation board is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A physical evaluation board is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of 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/her office, grade, rank, or rating. 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. 3. Army Regulation 635-40 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/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. DISCUSSION: 1. The applicant's records show he was dropped from the rolls after an extended period of AWOL, charged with attempted rape, and incarcerated at the Idaho State Penitentiary for an unknown amount of time. 2. His discharge packet is not in his available records for review, but his records show he was pending court-martial proceedings at the time of his discharge. Although the complete facts and circumstances surrounding his discharge for a civil conviction are not available for review, administrative regularity must be presumed in the absence of evidence showing error or injustice in his discharge processing. 3. There is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights. It is therefore presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-206 for a civil conviction and was incarcerated in the Idaho State Penitentiary at the time of his discharge. His discharge accurately reflects his overall record of service. 5. There is no evidence the diagnoses of schizophrenia or any other behavioral health conditions existed during his military service or that his misconduct was mitigated by a behavioral health condition. The presence of potentially untreated schizophrenia during his time in service does not mitigate his actions, as the nature of schizophrenia, specifically reported as depressive symptoms, anger, and auditory hallucinations, are not reasonably related to the misconduct of unauthorized absences or attempted rape. 6. There is no evidence of record showing he was assigned a permanent physical profile rating, had a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or underwent a medical examination that warranted his entry into the PDES. Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. 7. Although the VA made a decision to terminate his benefits based on the character of his discharge, the ABCMR does not amend and/or correct military records solely for the purpose of making an applicant eligible for VA benefits. Each case is individually considered based on the evidence of record and the evidence presented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012580 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012580 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2