IN THE CASE OF: BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20160003564 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: 5 December 2017 DOCKET NUMBER: AR20160003564 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: 5 December 2017 DOCKET NUMBER: AR20160003564 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 an upgrade of his general discharge to honorable. 2. The applicant states: a. He had just gotten out of the mental hospital and asked to be released from duty because he couldn’t take what was happening anymore. The hospital determined nothing was wrong, but later he was diagnosed with several different disorders, including bipolar and borderline attention deficit disorder. b. He feels he was harassed from the day he had an accident involving a military vehicle. He is not sure why it says misconduct on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with no other details. He was in no condition to review anything on his DD Form 214 when he was discharged. He just wanted to get out so he could get away from the people abusing him while he was serving on active duty. c. A staff sergeant told him he would be able to upgrade his discharge after 6 months. 3. The applicant provides no additional evidence. 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 15 April 1994 for a period of 3 years. He completed his training and was awarded military occupational specialty 13M (multiple launch rocket systems crewmember). 3. Between 8 February 1995 and 6 December 1995 he was counseled for: * missing numerous formations * marginal performance * failing to maintain accountability of equipment * damaging Government property due to negligence * unsatisfactory duty performance * failing room inspection * failing to prepare for morning inspection * failing to follow a lawful order * failures to repair * disobeying awful orders * unacceptable room standards * insubordination to a noncommissioned officer * sleeping on duty * issuing a false statement 4. On 17 April 1995, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty. 5. On 29 November 1995, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty. 6. On 4 December 1995, he underwent a mental status evaluation. The evaluating psychiatrist found his behavior was normal, he was fully alert and oriented, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good. The evaluating psychiatrist found he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness). He was cleared for administrative (or judicial) action. 7. His Standard Form 88 (Report of Medical Examination), dated 8 December 1995, shows he underwent a separation physical examination. a. Item 42 (Psychiatric) of this form shows he was rated abnormal with the following physician's notes: * flat affect * depressed mood * psychomotor retardation * rule out depressive disorder (previously evaluated by Community Mental Health Services) b. Item 76 (Physical Profile) shows he was assigned a rating of "1" under the psychiatric factor. c. Item 77 (Examinee) shows he was qualified for separation. 8. On 19 December 1995, discharge proceedings were initiated against him for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b. His unit commander cited his two NJPs and numerous counseling statements for misconduct and being late for 15 formations. 9. On 19 December 1995, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected not to submit a statement in his own behalf. 10. On 19 December 1995, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate. 11. On 28 December 1995, he was discharged under honorable conditions (general) for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b (patterns of misconduct). He completed 1 year, 8 months, and 14 days of active service. 12. 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. 13. An advisory opinion was rendered by the Army Review Boards Agency Psychologist, dated 13 October 2017, wherein he stated: a. The available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition existed at the time of the applicant's military service. b. There were no behavioral health conditions present at the time of his misconduct. c. A behavioral health evaluation was conducted prior to his administrative separation. File records show he had a separation mental status examination on 4 December 1995. He was cleared for discharge under the provisions of chapter 14. He was also judged to meet Army medical retention standards. The examiner did not offer any diagnoses. d. The applicant met medical retention standards. e. His medical conditions were duly considered during medical separation processing. f. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge. g. Based on the information available for review at the time, the applicant did not have a mitigating medical or behavioral health condition for the offenses which led to his separation from the Army. 14. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 7 prescribes a system for classifying individuals according to functional abilities. The functions have been considered under six factors designated "P-U-L-H-E-S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4. An individual having a numerical designation of "1" is considered to possess a high level of medical fitness under that factor. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 3 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. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. c. There is no automatic upgrading by any government agency. Upgrading is considered only upon application to the ABCMR or the Army Discharge Review Board. DISCUSSION: 1. The applicant contends he was in no condition (mentally) to review his DD Form 214 when he was discharged on 28 December 1995. The medical evidence of record shows he was found mentally responsible by an Army psychiatrist on 4 December 1995. Although his Standard Form 88, dated 8 December 1995, shows he was rated abnormal for "psychiatric" (flat affect, depressed mood, psychomotor retardation, and rule out depressive disorder), he was assigned a rating of "1" under the psychiatric factor and he was found qualified for separation. 2. A clinical psychologist reviewed his records and determined: a. There were no behavioral health conditions present at the time of his misconduct. b. He met medical retention standards. c. His medical conditions were duly considered during medical separation processing. d. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge. e. He did not have a mitigating medical or behavioral health condition for the offenses which led to his separation from the Army. 3. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 4. His record of service included numerous adverse counseling statements and two NJPs. 5. Although a discharge under other than honorable conditions is normally considered appropriate for the authority and reason for his discharge, he was issued a general discharge under honorable conditions. 6. There is no automatic upgrading of the character of service, regardless of the passage of time. Upgrading is considered only upon application to the ABCMR or the Army Discharge Review Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003564 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003564 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2