IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150017212 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: 28 March 2017 DOCKET NUMBER: AR20150017212 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: 28 March 2017 DOCKET NUMBER: AR20150017212 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, that his under other than honorable conditions discharge be upgraded to an honorable discharge based on an unspecified medical condition. 2. The applicant states: a. He was given some type of medication that didn't agree with him and he went out of control. b. During his active service, he was being evaluated for mental health issues and was prescribed medications by his psychiatrist that severely worsened his psychological and emotional state, leading to a psychotic break that ended with him going absent without leave (AWOL). c. After a short time of getting the medications out of his system, he turned himself in and received an under other than honorable conditions discharge. d. Ever since then, he has been struggling to hold onto employment, has been chronically homeless and has been unsuccessful in keeping relationships with his family, ex-wife and friends. He would like his discharge upgraded to an honorable discharge for medical reasons, and he would like to be evaluated for psychological disability. 3. The applicant provides no additional evidence in support of his request. 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 26 May 1997 at 18 years of age. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 91B (Medical Specialist). 3. The applicant was assigned to the U.S. Army Medical Department Activity, Fort Sill, OK, on or about 7 November 1997. It appears his unit reported him as AWOL on or about 4 May 1998; however, the DA Form 4187 (Personnel Action) that changed his duty status from present for duty to AWOL is not available for review. 4. A DA Form 4187, dated 5 June 1998, shows the applicant's duty status was changed from AWOL to dropped from the rolls of the Army on or about 3 June 1998. 5. A DD Form 616 (Report of Return of Absentee), dated 19 July 1998, shows the applicant surrendered himself to civilian authorities and was returned to military control on 19 July 1998. He was then transferred to the Personnel Control Facility (PCF), Fort Knox, KY. 6. A DA Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 22 July 1998 for a violation of Article 86 of the Uniform Code of Military Justice (UCMJ), specifically, for being AWOL from his unit from on or about 4 May 1998 through on or about 19 July 1998. 7. The applicant consulted with legal counsel on 22 July 1998 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He indicated he had been advised as to the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. b. He was advised he may submit statements on his behalf. He did not submit a statement. 8. While assigned to the PCF, the applicant's immediate commander recommended approval of his request for discharge on 14 January 1999, with an under other than honorable conditions characterization of service. The commander stated there did not appear to be any reasonable ground to believe the applicant was, at the time of misconduct, mentally defective, deranged or abnormal. 9. The separation authority approved the applicant's request for discharge on 1 February 1999, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 10. The applicant was discharged on 16 July 1999. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation  635-200, chapter 10, and his character of service was under other than honorable conditions. 11. The applicant's medical records are not available for review and his available personnel records are void of any documentation showing he suffered from, or was being treated for, any medical conditions at the time of his separation that may have rendered him medically unfit to perform his duties within the scope of his grade and specialty. 12. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 13. In the processing of this case, an advisory opinion was obtained from the Army Review Board Agency (ARBA) Medical Advisor on 15 December 2016. This official stated: a. The applicant did not provide independent, expert corroboration of his current mental status or his mental status at the time of his AWOL or service. b. The available records show the applicant had a history of difficulties similar to AWOL before he entered the military. In particular, he had juvenile difficulties that included four runaways (1 November 1991, 10 January 1992, 10 June 1992, and 7 July 1992). The records also indicate the problems with his "un-governability" by his parents arose in late 1991. c. There was a non-military psychological evaluation in the applicant's file. It included intelligence testing that showed his intelligence to be average. It raised some questions about the skill of his parents in rearing him. It also noted his background was comfortable. His parents had good jobs at Martin-Marietta. d. No available report diagnosed him with a mental illness, though he presumably had a diagnosis, if a psychiatrist had prescribed, as the applicant has claimed, a medication. e. The applicant graduated from high school and entered the Army at age 18 to train as a "Medical Specialist." He provides insufficient evidence to mitigate the misconduct that led to his discharge under less than honorable conditions. f. The applicant's available records do not at the time of his discharge reasonably support him having had a boardable medical condition. He met the standards in Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). Available case material did not support the existence of a mitigating mental health condition. Available records did not include an exit medical exam required by Title 10, Section 1177 (e.) based on available behavioral-health evidence, there is no behavioral-health reason to upgrade his discharge. g. The applicant's medical conditions were not shown to have been ignored at the time of his discharge. h. A review of available documentation did not find evidence of a mental health condition or conditions are supportive of a change to the character of the discharge in this case. A nexus between the applicant's misconduct and mental-health condition was not discovered. 14. The applicant was provided a copy of the advisory opinion, for his information and to provide him an opportunity to comment or rebut the opinion. He did not respond. 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 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. 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. 2. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating. This regulation provides that: a. The medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. b. An enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions. DISCUSSION: 1. The applicant contends his discharge should be upgraded because he was receiving mental-health care and had a negative reaction to prescription medications that worsened his psychological and emotional state, leading to him going AWOL and being dropped from the rolls. He further contends he returned to military control when the medications were out of his system. 2. The applicant enlisted in the Regular Army at 18 years of age. During his period of service, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. 3. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. There is no evidence of indiscipline prior to going AWOL in the applicant's record; however, he did, in fact, go AWOL for 75 days. Following his return to military control, he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge. The separation authority determined his overall record of service did not rise to the level required for either an under honorable conditions (general) or honorable discharge. 5. The available evidence does not show the applicant sustained any injury or illness that warranted his entry into the PDES. An advisory opinion was provided after a review of available documentation. The Medical Advisor did not find evidence of a mental health condition or conditions that supported a change to the character of his discharge in this case. A nexus between the applicant's misconduct and a mental-health condition was not discovered. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017212 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2