BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002847 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: 19 October 2017 DOCKET NUMBER: AR20160002847 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: 19 October 2017 DOCKET NUMBER: AR20160002847 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 that the records of his deceased son, a former service member (FSM), be corrected to show that he received an "honorable discharge under medical conditions." 2. The applicant states: a. The FSM should have been given an honorable discharge when he was discharged from the Army, since he had bipolar disease at the time of enlistment. b. He served 2 years and 5 months before having a bipolar event. The Army did not properly evaluate his condition before his enlistment or at the point of his potential court-martial and dishonorable discharge. His counsel should have had him mentally evaluated before recommending he accept an under other than honorable conditions (UOTHC) discharge. c. In a letter from the Department of Veterans Affairs (VA), they term the FSM’s discharge as a dishonorable discharge; however, only the court can issue a dishonorable discharge. He deserves a burial flag, a government grave marker, made whole for all pay and benefits, and an apology given to his daughter. If the FSM had cancer at the point of his enlistment, he would surely have received an honorable discharge for medical reasons. Bipolar disorder is a disease equally devastating. d. The Army should review the FSM’s enlistment and medical records to determine how they missed or elected to omit his medical condition. 3. The applicant provides the FSM’s: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * FSM’s death certificate, dated 9 August 2015 * A letter from the VA, dated 27 October 2015 * Response to the advisory opinion * Information on bi-polar disorder CONSIDERATION OF EVIDENCE: 1. The applicant’s records did not contain nor did the applicant provide any medical evidence showing he had a psychiatric condition. 2. On 17 March 1982, the FSM enlisted in the Regular Army. 3. A series of DA Forms 4187 (Personnel Action) show the following changes to the FSM’s duty status: “ a. Ordinary leave to absent without leave (AWOL), effective 9 March 1984, b. Dropped from unit rolls (DFR) to present for duty (PDY) to AWOL, effective 8 May 1984, and c. PDY to AWOL, effective 28 May 1984. 4. A DA Form 3975 (Military Police Report), shows the FSM surrendered to military authorities on 14 June 1984. 5. A DA Form 4187 shows the FSM’s duty status changed from AWOL to PDY, effective 14 June 1984. 6. A DD Form 458 (Charge Sheet), dated 15 June 1984, shows court-martial charges were preferred against the FSM. He was charged with being absent from his unit without authority from on or about 9 March 1984 to on or about 8 May 1984 and from on or about 28 May 1984 to on or about 14 June 1984. 7. On 18 June 1984, the FSM accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for failing to go to his appointed place of duty at the prescribed time on 28 May 1984. His punishment consisted of a reduction to the rank/grade of private first class (PFC)/E-3, forfeitures of pay, in the amount of, $171.00 per month for one month, extra duty for 7 days, and restriction for 7 days. He did not appeal his punishment. 9. On 20 June 1984, the FSM consulted with legal counsel and subsequently, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. a. The FSM acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he made this request of his own free will and had not been subjected to any coercion whatsoever by any person * he was advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charges against him or a lesser included offense * that under no circumstances did he desire further rehabilitation or desire to perform further military service * he understood that, if his request for discharge was accepted, he may be discharged under conditions other than honorable and furnished an under than honorable discharge certificate * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits administered by the VA, and as a veteran under both Federal and State laws he could expect to encounter substantial prejudice in civilian life by reason of an UOTHC discharge * he was advised that he may submit any statements in his own behalf, which would accompany his request for discharge b. The FSM elected not to submit a statement with his request for discharge. 10. On 9 August 1984, the FSM’s request for discharge for the good of the service in lieu of a trial by court-martial was approved. He would receive a discharge UOTHC, he was advised that he would be reduced to the lowest enlisted grade unless already serving in that grade, and his charges would be dismissed on the date of his discharge. 11. On 23 August 1984, the FSM was discharged accordingly. His DD Form 214 shows he received an UOTHC discharge. He completed 2 years, 2 months, and 22 days of net active service during this period with 73 days of lost time. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations. 13. The applicant provided a copy of the FSM’s death certificate, which shows the FSM died on 9 August 2015. 14. The applicant provides a letter from the VA, which responds to the applicant’s request for a burial headstone, marker, and burial flag for the death of the FSM, which states in part, "We are denying your request because VA benefits are barred based on the 'Under Other Than Honorable Conditions' discharge received for [FSM]. Because the discharge was based on findings of misconduct, it is considered for VA purposes to have been issued under dishonorable conditions, as stated in section 3.12(d) (4) of Title 38 of the United States Code…" 15. On 5 June 2017, an advisory opinion was obtained from an Army Review Boards Agency (ARBA) psychologist, which states: a. The FSM served on active duty from 17 March 1982 to 23 August 1984. He received a UOTHC discharge for the good of the service in lieu of a trial by court-martial. A death certificate from the State of North Carolina indicates he died of a drug overdose on 9 August 2015. b. On 27 November 2015, the FSM’s next of kin (NOK), the applicant, submitted a request to ABCMR to upgrade the FSM’s discharge to honorable based on having a behavior health disorder (bipolar disorder), claiming his UOTHC discharge was related to his mental health. The NOK contends the FSM should have received an honorable discharge under medical conditions due to having bipolar disorder at the time of his enlistment and that he continued to have this disorder following his years of service. In addition, the Army should have properly evaluated the FSMs condition before his enlistment and at the point of his potential court-martial. c. Military records indicate that the FSM’s early separation from the Army was based on two periods of AWOL. The FSM requested a discharge for the good of the service on 20 June 1984. He acknowledged that he understood that he could be discharged with a UOTHC, which could deprive him of both Army and VA benefits, and that he could expect to encounter substantial prejudice in civilian life, by reason of an undesirable discharge. A military document indicated that the FSM attributed going AWOL to personal problems and he reported drinking heavily in his previous unit. After going AWOL for a second period, the FSM surrendered to military authorities. Upon his return to military control, he expressed his desire to be discharged from the Army, and his request was approved on 9 August 1984. The FSM’s discharge was based on the opinion of the commanding officer that he had an attitude toward the military and lacked any rehabilitative potential. d. Based on a review of available records, there is no evidence the FSM met the criteria for a bipolar disorder during his time in service. His record is void of medical or behavioral health documentation confirming a bipolar diagnosis in-service or post-service. Without medical records or other service documents concerning an explanation of behavioral health symptoms that could have contributed to a service connected discharge from the Army, a mental health condition could not be made. 16. On 6 June 2017, a copy of the advisory opinion was provided to the applicant. 17. On 19 June 2017, the applicant responded to the advisory opinion, providing an article produced by the National Alliance on Mental Illness (NAMI) and submitted the following statement: a. After the FSM was discharged from the Army, he received treatment for a bipolar disorder by Doctor C____ in Graham, NC. Later, the FSM moved to Durham, NC, and was under the care of another doctor when the FSM overdosed on medication the doctor prescribed. Unfortunately, this doctor died before he could write a letter to the Board. b. The applicant believes the FSM had an episode brought on by the pressures of his military assignment and his use of alcohol. The applicant also feels the FSM used alcohol to offset the effects of his bipolar disease. c. The applicant was unaware the FSM was AWOL for a second time, and believes the commanding officer's assessment that the FSM had an "attitude" should not alone have been justification for his separation. d. The applicant states, in effect, the ARBA psychologist can not determine if post-traumatic stress disorder (PTSD) or any other board-able behavior health condition existed if they did not evaluate the actual person. The medical record alone should not determine whether or not the FSM had a bipolar disease. e. The applicant provides the following additional comments: * you cannot diagnose the bipolar disease without a personal interface with a patient and physician * you should read information from groups like NAMI that really researched this disease * the easiest thing a senior noncommissioned officer can do is transfer his or her problems * the Army deserves better than the advisory opinion covering this case * the saying "if you can’t shoot accurately than shoot often" seems to prevail * his youngest Army grandson should know that "Army Strong" was just propaganda f. The applicant provides a NAMI article which defines bipolar disorder as a chronic mental illness that causes dramatic shifts in a person’s mood, energy, and ability to think clearly. People with bipolar disorder have high and low mood, known as mania and depression, which differs from the typical ups and downs most people experience. If left untreated, the symptoms usually get worse. The article describes the following: * symptoms * early warning signs * causes * diagnosis * treatment * related conditions 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 UOTHC is normally considered appropriate. b. 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. a. Paragraph 3-7b states 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. 3. Army Regulation 635-40 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 office, grade, rank, or rating. a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Paragraph 4-1-3 states a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. It also states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC. DISCUSSION: 1. The applicant requests correction of the FSM’s record to show he received an honorable discharge due to a medical condition instead of a UOTHC discharge. 2. The applicant contends the FSM had a bipolar disease at the time of his enlistment and the Army did not properly medically evaluate his condition before his enlistment or prior to granting his separation in lieu of a trial by court-martial for being AWOL. 3. The evidence of record reveals the FSM received NJP for failing to go to his appointed place of duty and was pending a court-martial for being AWOL on two different occasions totaling 73 days. 4. The evidence shows that after receiving the advice of legal counsel, the FSM voluntarily requested discharge for the good of the service in lieu of trial by court-martial. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 5. Based on the FSM’s record of indiscipline, the separation authority determined his service did not meet the standards of acceptable conduct and performance of duty for Army personnel and did not meet the criteria for a general or an honorable characterization of service. 6. The applicant contends that the FSM had a bipolar disease, which, along with his military stress and his alcohol use, initiated an episode that caused his misconduct. However, there are no documents in the available records showing the FSM was seen for any behavioral health issues. 7. The advising psychologist opined that, based on a review of available records, there is no evidence the FSM met the criteria for a bipolar diagnosis in-service or post-service. Without medical records or other service documents showing evidence of behavioral health symptoms that could have contributed to a service connected discharge from the Army, a mental health diagnosis could not be made. 8. The applicant provided a response to the advisory opinion by providing an article by the NAMI, which describes the symptoms, early warning signs, causes, diagnosis, treatment, and related conditions of bipolar disorder. The applicant offered no independently verifiable evidence to support his assertion that the FSM had a bipolar disorder. 9. The ABCMR does not have jurisdiction over the VA and does not have the authority to determine eligibility for VA 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) AR20160002847 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002847 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2