IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150018062 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: 13 April 2017 DOCKET NUMBER: AR20150018062 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: 13 April 2017 DOCKET NUMBER: AR20150018062 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, an upgrade of his under honorable conditions (general) discharge. 2. The applicant states: * he was discharged without any consideration being given to his preexisting physical limitations from an injury * this affected his ability to perform his assigned duties in the required manner * this eventually led to feelings of anxiety and depression and his excessive drinking and conflicts with his chain of command * his chain of command felt the problem was not serious enough for a referral for medical evaluation but he was referred to see the chaplain * if he received medical care, it would have prolonged his military career 3. The applicant provides six medical documents from the University Hospital, Augusta, GA, dated between 27 January 1967 and 8 February 1967. 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. A Standard Form (SF) 93 (Report of Medical History), dated 18 August 1975, documents the applicant's entrance physical examination at Fort Jackson, SC, wherein he reported his medical history as good; he acknowledged he stuttered when he was nervous and he acknowledged having had a knee operation when he was 11 years old, for which he was hospitalized in 1966 or 1967. 3. A SF 88 (Report of Medical Examination), dated 18 August 1975, with axillary documents, documents the applicant's entrance physical examination at Fort Jackson, SC. As a result of his knee operation in 1967, he was referred to the orthopedics clinic to determine his medical fitness for entrance into the Army. After an x-ray was taken, a review of his medical documents from the University Hospital, and an examination by the orthopedic clinic medical doctor, it was determined the applicant's knee was fully healed, with full range of motion, and he was fit for enlistment in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 2. As a result, he was deemed qualified for active duty military service by medical authorities. 4. The applicant enlisted in the Regular Army on 23 September 1975. He completed his initial entry training and was awarded military occupational specialty (MOS) 76D (Material Supplyman). The highest rank/grade he attained while serving on active duty was private (PV2)/E-2. 5. A review of the applicant's record reveals that on 8 September 1976, his commander referred him to the Fort Gordon Mental Hygiene Consultation Service for an evaluation due to marital and financial problems that were interfering with his duty performance. The medical professionals opined: a. The applicant related that his financial problems in the past made it difficult to get credit and therefore, it caused marital problems. He desired to be separated from the service, feeling that outcome was the only acceptable solution to his problems. b. The applicant appeared to be a relatively stubborn and an intellectually slow young man. He related to a history of coping with conflict by having difficult situations. His goal orientation appeared unrealistic and his coping abilities were limited. He refused all counseling services and his rehabilitative potential was quite low (emphasis added). c. The applicant was cleared for any administrative action deemed appropriate by the command. 6. A Fort Gordon Signal School (FGSIGS) Form 284 (Student Counseling Report), shows the applicant's company commander counseled him on 21 September 1976 about his obligations and responsibilities to the U.S. Army. The applicant stated he could do as he pleased and wanted out of the Army. His commander counseled him on the consequences of his behavior and the impact of a discharge on his civilian life. The applicant had his mind made up, with respect to being discharged, and his commander recommended that he be discharged. 7. The applicant accepted nonjudicial punishment (NJP) on 6 October 1976, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on or about 24 September 1976. His punishment consisted of 7 days of extra duty. 8. A SF 93 (Report of Medical History), dated 14 October 1976, shows the applicant reported his health as good and noted his knee operation in 1966. 9. Standard Form 88 (Report of Medical Examination), dated 14 October 1976, shows the applicant had no medical conditions and his physical profile categories were all noted with "1." As a result, he was deemed qualified for separation. 10. The applicant's records include three "Statements of Counseling," all dated 15 October 1976, which show he was counseled for several infractions including being late for duty, poor attitude toward military service, lack of motivation, marginal duty performance, lack of self-discipline, and more concern for personal ambitions than his military obligations. 11. A DA Form 3822-R (Report of Mental Status Evaluation), dated 15 October 1976, shows the applicant was evaluated by a medical doctor who assessed the applicant had normal behavior, with a clear thought process and normal thought content, and good memory. He was fully oriented with depressed mood. He was determined to have no significant mental illness, able to distinguish right from wrong, and was mentally responsible. He further had the mental capacity to understand and participate in any board proceedings and meet the retention standards in accordance with Army Regulation 40-501, chapter 3. 12. The applicant was informed by his immediate commander on 20 October 1976, that action was being initiated to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, under the Expeditious Discharge Program (EDP) with a General Discharge Certificate. a. His commander cited the reasons for the proposed separation action as his NJP, numerous counselings by the chain of command (lack of motivation, poor attitude, marginal duty performance), the Fort Gordon Mental Hygiene Consultation Service counseling (his desire to separate and refusal for any counseling services), and his unwillingness to become a productive Soldier. b. The commander informed him that the issuance of a less than honorable discharge could preclude his eligibility for many or all veteran's benefits and he could expect to encounter substantial prejudice in civilian life. c. The commander informed him that he had the right to decline this type of discharge, in which he could be processed for separation under other provisions of law or regulation. 13. After consulting with counsel on 21 October 1976, the applicant acknowledged notification of his proposed separation from the Army. He indicated he voluntarily consented to the separation and elected not to submit a statement in his own behalf (emphasis added). He further acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions * he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps * he understood that he may, prior to the date the discharge authority approves his discharge, withdraw his voluntary consent to the discharge * if he declined to accept the discharge voluntarily, he could be subject to separation at a future time under other provisions of law or regulation if his conduct so warrants 14. The separation authority approved the applicant's discharge on 22 October 1976, under the provisions of Army Regulation 635-200, paragraph 5-37, under the EDP, for failure to maintain acceptable standards for retention. The separation authority directed the issuance of a DD Form 257A (General Discharge Certificate). 15. The applicant was discharged on 29 October 1976. His DD Form 214 (Report of Separation from Active Duty) confirms his service was characterized as under honorable conditions (general). 16. There is no documentation in the available record, nor has the applicant provided any documentation, which shows he was injured during his period of military service, or that shows he had an injury of the severity to warrant his entry into the Physical Disability Evaluation System (PDES) for review for a possible medical separation. Further, there is no evidence in his record indicating he had a drinking problem. 17. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 18. The applicant provides six medical documents from the University Hospital, Augusta, GA, dated between 27 January 1967 and 8 February 1967. These documents show he had right knee surgery on or about 8 February 1967. 19. In connection with processing of this case, an advisory opinion was obtained on 9 September 2016 from the Medical Evaluation Board Provider, McDonald Army Health Clinic, U.S. Army Medical Department Activity, Fort Eustis, VA. This medical professional opined: a. The applicant is of the opinion that he should have underwent a medical evaluation board in lieu of his administrative separation. b. The applicant was released from active duty in October 1976 with a general discharge. At the time he had 1 year, 1 month, and 7 days of total active service and the reason was "failure to maintain acceptable standards for retention (EDP)." c. The applicant states he was discharged from the military without consideration being given to a preexisting physical limitation. In support of his contention, he submitted "hospital records of a severe knee injury, dated 1966, ten years prior to his service entry day." d. A review of the applicant's medical records, submitted by the applicant, annotate/document surgery comprising a medial meniscectomy performed on 8 February 1967. One post-operative note, dated 16 February 1967, is also provided that appears to suggest he was not doing well with trying to use crutches. No further medical documents were provided. His initial entry physical is not available but one would assume he met accession standards at that time. He did not provide any copies of profiles he may have had during his active-duty service. e. There is insufficient documentation/evidence of any permanent duty limitations existing at the time of his administrative separation. This would also have been an existed prior to service (EPTS) condition. There are no documents indicating any service-incurred aggravation [to his knee]. In summary, there is no evidence that his knee pain was of sufficient severity to over-ride his administrative separation (no evidence to support contention that he should have undergone a medical evaluation board/physical evaluation board). 20. The applicant was provided a copy of the advisory opinion on or about 14 September 2016, to afford him the opportunity to respond to its content. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that 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 (MEB). Those Soldiers who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 3. Army Regulation 635-40, paragraph 2-2b(1), in effect at the time, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit. This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Chapter 5 provided for the EDP. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP. Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge (emphasis added). DISCUSSION: 1. The applicant's request for an upgrade of his under honorable conditions (general) discharge was carefully considered. 2. The applicant contends his preexisting condition (a knee surgery more than 8 years prior to his enlistment) limited his ability to properly perform his duties which led to his overwhelming feelings of anxiety, his drinking problems, and caused conflict with his chain of command. 3. The available record shows his preexisting condition (knee pain) was thoroughly evaluated by the medical authorities prior to his entrance in the Army and was deemed to be fully healed and fit for enlistment in accordance with applicable regulations. Additionally, there is no additional documentation, nor does he provide any, which shows that during his period of military service, this condition or any other medical condition prevented him from performing his military duties and warranted his referral for processing through Army medical channels. 4. The available records further show that his chain of command sent him to the mental hygiene consultation service for an evaluation due to marital and financial problems. This action is evidence of his chain of command's concern for his well-being and their assistance in trying to help him resolve his issues. This action was met with his desire to be separated out of the service and a refusal of any assistance of counseling services or rehabilitative potential. 5. The applicant's record contains NJP and numerous counseling statements showing he displayed a poor attitude, lack of motivation, being late for duty, marginal duty performance, and being more concerned about his personal ambitions rather than his military obligations. In addition, his record contains his self-professed desires to be discharged from the Army. This evidence of record shows he demonstrated he could not or would not meet acceptable performance standards required of enlisted personnel in the Army. Accordingly, his immediate commander initiated separation action against him. 6. The applicant was notified of the reasons for his recommended separation and he authenticated a statement with his signature acknowledging he understood the prejudices associated with his discharge and voluntarily consented to the separation in accordance with the applicable regulation at the time. 7. His administrative separation was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018062 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018062 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2