IN THE CASE OF: BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150015162 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: 12 January 2017 DOCKET NUMBER: AR20150015162 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: 12 January 2017 DOCKET NUMBER: AR20150015162 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 discharge to an under honorable conditions (general) discharge by reason of medical issues. 2. The applicant states: a. He was sick with severe depression and should have received a general discharge for medical reasons. He joined the Army at age 17 and did well with education; he received a general education diploma (GED) and completed correspondence courses during his tenure as a combat engineer. In 1978, his parents were getting a divorce leaving him with severe depression; he wanted to help prevent the divorce proceedings. His mental breakdown was the cause of the frequent incidents that resulted in his discharge. c. During civilian life, he has become a pillar of the community, furthered his education in engineering, and received certifications in business management. Upgrading his discharge to a general discharge will help him to continue his quest to be outstanding in his community. From 1995 to 1997, he spent 3 years in the Army Corps of Engineers, Vicksburg District, MS. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * divorce decree, dated 6 January 1978 * five training certificates, dated between 1980 and 6 June 2012 * two letters, dated 15 May 1985 and 29 October 2014 * certificate of baptism, dated 4 May 2008 * three statements of support * 16 pages of mental health documents, dated between 26 March and 2 May 2016 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 24 September 1976 and he held military occupational specialty (MOS) 82B (Construction Surveyor). He was assigned to the 34th Engineer Battalion (BN), Fort Riley, KS. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on: * 23 March 1977, for failing to report to his appointed place of duty at the prescribed time and for being disrespectful in language toward the first sergeant (1SG) * 4 November 1977, for failing to report to his appointed place of duty * 22 November 1977, for violating a lawful regulation by having three rounds of ammunition in his barracks room 4. On or about 14 January 1978, he was assigned to the Individual Effectiveness Course (IEC), 1st BN, U.S. Army Retraining Brigade, Fort Riley. On 24 January 1978, he received NJP under the provisions of Article 15, UCMJ, for two specifications each of disobeying lawful orders. 5. Between 23 and 30 January 1978, he was counseled by various members of the IEC for: * being the subject of charges of aggravated assault, extortion, and communicating a threat * using a provoking gesture * being disrespectful and using provoking language towards a commissioned office * failing to follow instructions * lacking motivation; failed to complete the physical training (PT) test * talking in the chow line and being disrespectful * failing to get out of bed on time * failing to follow instructions 6. On 15 February 1978, the IEC commander recommended the applicant be discharged for misconduct as he failed to successfully complete the IEC. The applicant was subsequently reassigned to the 34th Engineer BN. 7. On 30 March 1978, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 8 to 9 March 1978. 8. On 13 April 1978, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b, for misconduct - frequent incidents of a discreditable nature toward civil and military authorities. 9. On 20 April 1978, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions (UOTHC) discharge and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws. He waived his right to have his case heard by a board of officers and declined to submit a statement in his own behalf. 10. His intermediate commander subsequently recommended approval of the separation action and stated the applicant's numerous counseling statements and [attendance at] IEC had failed to improve his behavior. This, coupled with the frequent incidents of a discreditable nature toward civil and military authorities, warranted the immediate discharge of the applicant. On 23 May 1978, his senior commander concurred with the proposed separation action. 11. On 25 May 1978, he was convicted by a summary court-martial of three specifications of failing to go to his appointed place of duty at the prescribed time and one specification of unlawfully striking another Soldier in the nose with his fist. 12. On 12 June 1978, the approving authority approved the separation action and directed a UOTHC discharge. On 22 June 1978, he was discharged accordingly. 13. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, paragraph 14-33b, by reason of misconduct - frequent incidents of a discreditable nature (separation program designator (SPD) JKA), with a UOTHC characterization of service. 14. His record is void of any evidence that shows he was treated for or diagnosed with any medical/mental condition while serving on active duty that prevented him from satisfactorily performing his military duties and/or was found to be unfitting. 15. On 5 March 1980, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge. 16. The applicant provides: a. Two statements of support, dated 6 January and 25 August 2015, wherein the program director of a residential treatment facility and a social worker stated the applicant was working to maintain his standing as a productive member of society and he followed all the rules of the facility. b. An undated statement of support from his mother wherein she stated the divorce of his father and her affected him deeply and she felt it was what caused his negative behavior while he was in the service. 17. The applicant provides 16 pages of mental health records which were forwarded to the Clinical Psychologist, Army Review Boards Agency (ARBA), for review. 18. In the processing of this case an advisory opinion was received on 2 November 2016 from the Clinical Psychologist, ARBA. The advisory official opined: a. The applicant served in the Army from 24 September 1976 to 22 June 1978 in MOS 82B. He received a UOTHC discharge under the provisions of AR 635-200, paragraph 14-33b, SPD JKA. He had no history of deployments. b. On 30 September 2015, the applicant requested the ABCMR upgrade his UOTHC discharge due to medical reasons. He contends he was sick with severe depression and should have received an under honorable conditions (general) discharge. The applicant contends that following his parents' divorce in 1978 he experienced severe depression and a mental breakdown which contributed to the infractions leading to his early separation from the Army. His case was previously denied in 1980 after the ADRB determined his discharge was proper and equitable and voted to deny relief. c. Military records indicated the applicant's early separation from the Army was based on frequent incidents of a discreditable nature toward civil and military authorities to include aggravated assault, extortion, communicating a threat, receiving four driving restrictions for traffic violations, and failing the IEC. In addition, he had numerous Article 15s and counseling statements for failure to repair, AWOL, failing to follow instructions, lack of motivation, and disrespect. d. A Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination), both dated 27 January 1978, indicated the applicant endorsed trouble sleeping, depression or excessive worry, and loss of memory. A DA Form 3822 (Report of Mental Status Evaluation), dated 27 January 1978, also indicated depression; however, it was determined the applicant did not have a significant mental illness, met retention standards, was responsible for his behavior, and was able to distinguish right from wrong (emphasis added). A psychiatry note, dated 30 January 1978, indicated depression, headaches, and trouble sleeping; however, no significant mental illness was found to warrant disposition through medical channels. e. A letter from a case manager, dated 29 October 2014, indicated the applicant was homeless and resided in a men's transitional housing facility for homeless veterans since 6 October 2014. A mental health assessment and treatment records from a psychotherapist who evaluated the applicant from March to May 2016 indicated a diagnosis of dysthymia to include a history of depression, physical altercations, childhood abuse, homelessness, alcohol and substance abuse, and suicidal ideation in response to marital distress. The applicant screened negative for post-traumatic stress disorder based on denial of trauma-related reactions. Following the evaluation, the applicant's prognosis was deemed as guarded and he was referred for individual psychotherapy and a psychiatric evaluation for psychotropic medication. f. The ARBA Clinical Psychologist was asked to determine if the applicant's military separation was due to a diagnosis of depression or another boardable behavioral health condition. This opinion is based on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time of his service. Based on a thorough review of available medical records, the applicant met medical retention standards under the provisions of AR 40-501 (Standards of Medical Fitness), chapter 3, at his time of separation. Symptoms of depression were duly considered during his separation processing and the condition did not warrant separation through medical channels. g. Furthermore, the applicant contends his infractions were as a result of symptoms of depression stemming from parents' divorce. However, some of his misconduct occurred prior to 1978 to include Article 15s for failure to repair, failing to go to his appointed place of duty, violating a lawful regulation by having ammunition in his room, and using disrespectful language towards a noncommissioned officer. In summary, a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 19. On 3 November 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, frequent incidents of a discreditable nature toward civil and military authorities, or commission of a serious offense. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. 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. DISCUSSION: 1. The evidence of record confirms the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his record of multiple disciplinary infractions throughout his military service. Accordingly, his immediate commander initiated separation action against him under the provisions of AR 635-200, paragraph 14-33b, for misconduct - frequent incidents of a discreditable nature. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The reason for his discharge and the type of discharge directed were appropriate considering all the facts of the case. 3. The applicant's record is void of any evidence that shows he was ever treated for or diagnosed with any mental condition/disorder while serving on active duty that prevented him from satisfactorily performing his military duties, was found to be unfitting, or was shown to have contributed to his acts of misconduct. As stated by the advisory official, his symptoms of depression were considered during his separation processing and he was found to meet retention standards at that time. The advisory official found no evidence of a medical disability or condition which would support a change to the characterization of his 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) AR20150015162 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015162 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2