SAMA-RB 15 February 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings, AR20150013510 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 26 January 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as "General, Under Honorable Conditions." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 15 June 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150013510 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: 26 January 2017 DOCKET NUMBER: AR20150013510 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: 26 January 2017 DOCKET NUMBER: AR20150013510 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 under other than honorable conditions (UOTHC) discharge to a general discharge (GD) or to show he was discharged due to a disability. 2. The applicant states when he was in the service he suffered from bipolar disorder. He had bipolar disorder all his life, but he was unaware of it until 2003. He was informed he could apply to have his discharge changed to be eligible for benefits. If he had the disorder when he was in the service it caused him to act out and he had no control over it. 3. The applicant provides a letter of support from the Los Angeles County Department of Mental Health and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 23 April 1971. 3. Summary Court-Martial Order Number 23, issued by the United States Army Personnel Control Facility, Fort George G. Meade, dated 28 February 1972, shows he pled guilty and was found guilty of being absent without leave (AWOL) from on or about 3 August to 23 September 1971. His sentence consisted of hard labor for 20 days, restriction for 10 days, and reduction to the pay grade of private/E-1. The sentence was adjudged on 24 February 1972. 4. A Standard Form 93 (Report of Medical History), dated 3 March 1972, shows he indicated in: * item 8 (Statement of Examinees Present Health and Medications currently used), he was in fair health * item 11 (Have you ever had or have now), he responded “Yes” to hearing loss, broken bones, recurrent back pain, car, train, sea or air sickness, frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort 5. A Report of Examination, dated 21 April 1972, shows he underwent a psychiatric evaluation. No diagnosis/psychiatric condition was found and he was qualified for separation. 6. A DA Form 458 (Charge Sheet), dated 25 April 1972, shows he was charged with: * being AWOL from on or about 11 to 20 April 1972 * willfully destroying property on or about 2 March 1972 * being drunk and disorderly on or about 2 March 1972 7. The applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the uniform code of military justice (UCMJ) (to include a bad conduct or dishonorable discharge), the possible effects of an UOTHC discharge, and procedures and rights available to him. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 8. In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 9. On 18 May 1972, an authorized official approved the applicant’s request and directed he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade. 10. He was discharged on 18 May 1972 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service. His service was characterized as UOTHC. 11. A review of the available records fails to show the applicant was suffering from any medically unfitting condition that would have required him to be processed for discharge through medical channels. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. The applicant provides a letter from Dr. K and Ms. L of the Los Angeles County Department of Mental Health, which states the applicant has been participating in outpatient mental health services. He has been a client from 3 April 2012 to the present. He has been in compliance with psychiatric appointments on a regular basis. The applicant has been diagnosed with bipolar disorder, unspecified. He receives medication support services and has been prescribed Wellbutrin, Abilify, and Benadryl. 14. On 31 October 2016, the Army Review Boards Agency clinical psychologist provided an advisory opinion in which she stated: a. There is evidence he met criteria for bipolar disorder during his military service. Despite a lack of military and/or civilian medical records indicating specific symptoms of bipolar disorder and its impact on functioning, there is evidence of substance abuse, disorderly conduct, and mood disturbance which can account for unauthorized absences, damaging property, use of alcohol and marijuana, and frequent contact with civil and military authorities. b. Prior to discharge, the applicant endorsed symptoms that are consistent with a diagnosis of bipolar disorder to include trouble sleeping, depression or excessive worry, and nervousness. Supporting medical documentation regarding a diagnosis of bipolar disorder was provided by Dr. K and Ms. L of the Los Angeles County Department of Mental Health where the applicant has received mental health treatment for several years. Given his impairment and the need for continued supportive services, it is likely bipolar disorder mitigated the misconduct that led to his separation from active duty. 15. On 31 October 2016, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal. No response was received from the applicant within the allotted timeframe. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. Soldiers who have been charged with an offense for which a punitive discharge is authorized are not eligible to be considered for separation due to a medical condition. 3. 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 punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. DISCUSSION: 1. In reference to his request for an upgrade of his UOTHC discharge, the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons for separation were appropriate considering the available facts at the time. 3. In reference to his request for a disability discharge, he contends he was suffering from bipolar disorder during his service in the military which led to his misconduct; however, prior to his discharge a Report of Examination showed he had no diagnosis and was qualified for separation. 4. The advising psychologist found that, given his impairment and the need for continued supportive services, it is likely bipolar disorder mitigated the misconduct that led to his separation from active duty. 5. A review of the available records fail to show the applicant was suffering from a medical condition that would have required him to be processed for discharge through medical channels. Further, because of his pending court-martial charges, he would not have been eligible for processing through the disability evaluation system. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013510 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013510 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2