BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002059 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: 12 September 2017 DOCKET NUMBER: AR20160002059 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: 12 September 2017 DOCKET NUMBER: AR20160002059 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 request, in effect, correction of his military records to show: * the nonjudicial punishment (NJP) imposed against him was overturned and the punishment set aside * he was advanced on the retired list to the highest grade held * his general discharge was upgraded and the narrative reason for separation was changed 2. The applicant states, in effect, that he is innocent of the alleged misconduct documented in his record leading to his involuntarily separation. This injustice has caused him to be denied medical and military benefits. 3. The applicant provides: * a compact disc * Department of Veterans Affairs (VA) medical records * Occupational Employment Statistics * numerous internet documents to include a history of the Berlin Brigade, extracts of military regulations, and medical definitions 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’s request is a culmination of numerous appeals previously submitted to the VA which are outside the jurisdiction of this Board. Further, it appears the applicant has requested relief for matters still under review or appeal with the VA. 3. A review of his military records show: * he enlisted in the Regular Army on 29 December 1976 * he served in Germany from 28 February 1977 to 3 July 1978 * the highest grade held was specialist four (SP4)/E-4 4. He accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice on: * 5 December 1977 for disobeying a lawful order (reduced to private first class (PFC)) * 14 June 1978 for failing to go to his appointed place of duty and possession of six grams of marijuana (reduced to private (PV2) * 27 June 1978 for being absent without leave (AWOL) from 20 to 23 June 1978 (reduced to private (PVT) – he appealed the 27 June 1978 punishment and his appeal was denied 5. On 15 June 1978, the applicant's commander notified him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), with a general discharge. The commander noted the following reasons for the proposed action: * AWOL from 25 May to 2 June 1978 * openly demonstrated hostility toward the Army * evidence of social and emotional maladjustment toward the Army * received one company grade and two field grade Article 15s * inability to adjustment to the military even after rehabilitative transfer * consistently failed to comply with directions of supervisors and inability to report to required formations and duties despite being counselled 6. After consulting with counsel and being advised of his rights, the applicant acknowledged notification of the proposed discharge action and he voluntarily consented to the discharge. He did not submit statements in his own behalf. He indicated that he understood: * he may expect to encounter substantial prejudice in civilian life * he could voluntarily withdraw his consent to discharge prior to the date the discharge authority approved the discharge * he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation 7. He underwent a Separation Medical Examination on 19 June 1978 wherein he indicated that to the best of his knowledge there was no change in his medical condition since entering the military. 8. On or about 27 June 1978, the separation authority approved his discharge as noted above and directed the issuance of a General Discharge Certificate. 9. On 4 August 1978, he was discharged in the rank/pay grade of private (PV2)/E-2. He had completed 1 year, 6 months, and 25 days of active service with 9 days listed as lost time. 10. His DD Form 214 shows in item 9c (Authority and Reason) that the authority and reason for his discharge was paragraph 5-31, Army Regulation 635-200, and the separation program designation code of JGH (involuntary separation). 11. His record is void of any evidence that shows he was diagnosed with or treated for any medical/mental conditions while serving on active duty. 12. The applicant provides various internet articles and VA medical documents. 13. After a thorough review of the applicant’s available military records, electronic medical records, and VA medical records, an Army Review Boards Agency Clinical Psychologist rendered an advisory opinion on 20 December 2016. The psychologist provides the following information: a. The principal behavioral-health evidence in the file is in an “In-Home Supportive Service Health Care Certification Form.” A physician, KDS, medical doctor notes, “[Patient] has a long history of psychotic/delusional disorder with fixed delusions mostly manifesting in somatic complaints that he believed developed in the Armed Services.” This form, dated 10 December 2014, includes the physician’s license number, but no date of onset of symptoms. Available evidence did not show the applicant had a psychotic or other mental-health disorder during or before his military service. b. There is insufficient evidence to conclude the applicant was mentally ill at the time of his discharge. The applicant’s diagnosis carries with it an implication that he often sincerely believes his assertions about his medical complaints, even if they are not corroborated by existing evidence or are inconsistent with his documented service history. He did become clearly psychiatrically impaired at some time in his past and appears to have been impaired when he submitted his most recent application on 2 December 2015. c. The applicant’s available records do not at the time of his discharge reasonably support him having had a boardable medical condition that is supportive of a change to the narrative reason or characterization of his discharge. d. The applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. e. The available case material did not support the existence of a mitigating mental health condition at the time of his misconduct. 14. The applicant responded to the advisory opinion on 12 January 2017, stating his concurrence with the Board’s decision to correct his record. It appears the applicant misinterpreted the advisory opinion, as the Board had not yet made a recommendation on the disposition of this case. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. 2. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7, in effect at the time, contained Army-wide promotion policy and procedures. It stated that the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restorations were announced in routine orders. 3. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. This regulation prescribes: a. In paragraph 5-31 for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either a general or honorable discharge. b. Those Soldiers processed under the EDP deemed to have no potential for useful service under conditions of full mobilization were to be discharged. c. In paragraph 3-7a, 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. d. Soldiers who have less than 30 years of active service, whose active service plus service on the Retired List total 30 years, are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served while on active duty. 4. Army Regulation 635-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. 5. Army Regulation 40-501 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. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 6. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that: a. 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. b. ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. DISCUSSION: 1. The applicant requests that his NJP be set aside, advancement on the Retired List to the highest grade held, and correction of the narrative reason and characterization of his discharge. 2. In regard to his request to be advanced to the highest grade held, he was not promoted beyond the rank of SP4, and his records show he was reduced on three separate instances as a result of NJP. At the time of discharge he held the rank of PV2. He is not on the Retired List. 3. He only appealed the 27 June 1978 Article 15 and that appeal was denied. There is no evidence of error or any violations of due process in any of the Article 15s he received. 4. His disciplinary history shows he committed repeated acts of misconduct. As a result, his commander initiated separation action against him and he voluntarily consented to the proposed discharge. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. The available records contain no evidence of procedural or other errors that would have jeopardized his rights. The separation authority determined his service did not rise to the lever required for an honorable characterization of service. 5. The ABCMR does not grant requests for discharge upgrades solely for making an applicant eligible for veterans' benefits. Every case decided based upon its individual merits when an applicant requests a change in his or her discharge. Granting veterans' benefits is not within the purview of the ABCMR. The applicant should continue to address to the VA any questions regarding medical disability and/or eligibility for benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002059 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002059 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2