IN THE CASE OF: BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150015729 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: 9 March 2017 DOCKET NUMBER: AR20150015729 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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 AR20060004137, dated 19 September 2006. _____________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: 9 March 2017 DOCKET NUMBER: AR20150015729 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision that was promulgated in Docket Number AR20060004137 on 19 September 2006. Specifically, he requests an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * he acknowledges he made mistakes while serving in the Army but he was sent to see a psychiatrist while in the service * it has taken him 33 years and a lot of effort to resolve his personal issues * he suffers from schizophrenia and other medical issues * he has turned his life around by completing treatment programs and training * his family stands behind him 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a medical statement from District 19 Community Services Board, Petersburg, Virginia, dated 10 September 2015. 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. 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 AR20060004137 on 19 September 2006. 3. The applicant provides a medical statement which was not previously considered by the Board. This document is considered new evidence that warrants consideration by the Board. 4. The applicant enlisted in the Regular Army on 18 June 1980. 5. The applicant accepted nonjudicial punishment (NJP) on 10 November 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent from his place of duty without authority. 6. The applicant was advanced to the rank/grade of private first class (PFC)/E-3 on 1 April 1981 (with a waiver for time in service), and on 11 December 1981, he was reassigned to Germany. 7. The applicant accepted NJP on 28 January 1982, under the provisions of Article 15 of the UCMJ, for failure to go to his appointed place of duty. 8. The applicant was found guilty by a summary court-martial on 15 March 1982, of three specifications of failure to repair and one specification of being absent without leave (AWOL) from 17 to 19 February 1982. 9. The applicant was transferred to the U.S. Army Retraining Brigade, Fort Riley, Kansas on 25 March 1982, to undergo correctional training. 10. The applicant's records show that while he was assigned to the U.S. Army Retraining Brigade, he was counseled on numerous occasions for repeated acts of misconduct including failure to follow instructions, disregard of rules and regulations, missing formation, and sleeping on duty. 11. On 28 April 1982, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct due to his involvement in frequent incidents of a discreditable nature. The commander stated the applicant was sent to the Retraining Brigade for the purpose of receiving correctional training and treatment as necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation. However, his actions precluded accomplishment of the objective as evidenced by the extensive counseling and incident reports related to his negative behavior, attitude, and ability. The commander further indicated the applicant had failed to respond to numerous counseling sessions and attempts by social workers, leadership teams, and unit cadre to rehabilitate him. He also opined that the applicant’s failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service. 12. The applicant underwent a mental status evaluation. He was found to be to be mentally responsible, free of mental defect, and able to distinguish right from wrong and to adhere to the right. A medical doctor conducted the evaluation and signed the form attesting to fact the applicant met the medical retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). There was no evidence of a behavioral health condition requiring processing through the disability evaluation processing system. The medical doctor cleared him for administrative separation processing. 13. On 4 May 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14. * he waived consideration of his case by a board of officers * he acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he acknowledged he understood that as a result of issuance of a discharge under conditions other than honorable he could be ineligible for many or all benefits as a veteran under both Federal and State laws 14. On 10 May 1982, the separation authority approved the recommendation for separation and directed the issuance of an under other than honorable conditions discharge. On 19 May 1982, he was discharged accordingly. 15. There is no evidence in the applicant's available records showing he had a mental health diagnosis that may have occurred while he was serving on active duty and that may have contributed to the act(s) of misconduct that led to his discharge. 16. The Army Discharge Review Board denied his request for an upgrade of his discharge on 2 June 1989. 17. The applicant provides a medical statement from District 19 Community Services Board, Petersburg, Virginia, dated 10 September 2015, showing he is being treated for schizophrenia. The case manager, who is not a medical doctor or a licensed behavioral health specialist, stated she would provide more medical information if the applicant signed a release of information statement. 18. On 28 February 2017, the Army Review Boards Agency Senior Medical Advisor provided an advisory opinion. After reviewing the available records, the Senior Medical Advisor found no clear nexus between the applicant's misconduct and a behavioral health condition. He did find evidence that some of his maladaptive behaviors and misconduct may have been secondary and consistent with the applicant's baseline cognitive and intellectual function and capacity. The Senior Medical Advisor found the applicant met medical retention standards for medical and/or behavioral health conditions applicable to his era of service. He further stated a review of the available documentation found some evidence of a medical disability or condition which might support a change to the character of the applicant's service or the reason for discharge. 19. The applicant was provided a copy of the advisory opinion for review and comment. He has not responded. REFERENCES: 1. 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record. A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. 3. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Soldiers who do not meet medical standards will be evaluated by a medical evaluation board and referred to a physical evaluation board to determine their fitness for duty. Possession of one or more of the conditions listed in chapter 3 does not mean automatic retirement or separation from service. DISCUSSION: 1. The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered. 2. The applicant contends he was sent to see a psychiatrist while in the service. There is merit to his statement because a medical doctor conducted his mental status evaluation prior to his separation. The medical doctor found him mentally responsible and free of a mental condition as defined in chapter 3 of Army Regulation 40-501. Therefore, there was no regulatory requirement for the applicant to enter into the physical disability evaluation system. The applicant was advanced to the rank/grade of PFC/E-3, with a waiver for time in service. This fact contributes to a conclusion that he was able to serve satisfactorily. 3. The applicant's disciplinary history includes his acceptance of NJP on two occasions, a court-martial conviction, and numerous counseling sessions for several acts of misconduct. This record of indiscipline clearly diminished the overall quality of his service below that meriting an honorable or a general discharge. As a result, his discharge accurately reflects the overall quality of his service. 4. The evidence confirms his separation processing for misconduct was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 5. He provides a statement from a community health case manager dated September 2015, showing he is/was receiving treatment for a behavioral health condition. 6. The Army Review Boards Agency Senior Medical Advisor found no clear nexus between the applicant's misconduct and a behavioral health condition. He did find evidence that some of the applicant's maladaptive behaviors and misconduct may have been secondary and consistent with the applicant's baseline cognitive and intellectual function and capacity. The Senior Medical Advisor stated a review of the available documentation found some evidence of a medical disability or condition which might support a change to the character of the applicant's service or the reason for discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015729 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015729 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2