BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160003718 BOARD VOTE: __x______ __x______ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160003718 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his record to the Office of The Surgeon General (OTSG) to determine if he should have been referred into the Integrated Disability Evaluation System (IDES) and, if the IDES process so determines, separated for physical disability. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a PEB. All required reviews and approvals will be made subsequent to completion of the PEB. b. Should a determination be made that he should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances. 2. If OTSG determines his medical issues did not warrant referral to the IDES, his DD Form 214 should be reissued showing he was honorably discharged. ___________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: 21 November 2017 DOCKET NUMBER: AR20160003718 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 honorable conditions (general) discharge be upgraded to an honorable discharge and correction of his record to show he was separated for medical reasons. 2. The applicant states he was diagnosed with bipolar disorder. He contends that as he was being discharged, someone in his company changed pertinent information on his discharge papers. He adds that he did his best and he was proud to serve his country. 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 12 June 1986. 3. The applicant's record contains several DA Forms 4856 (General Counseling Form) with dates ranging from 5 December 1986 through 28 March 1988, which show he was counseled for numerous deficiencies, including but not limited to, failure to follow orders and instructions, poor performance, disrespect toward his superiors, and rendering dishonored checks. 4. The applicant accepted nonjudicial punishment (NJP) on 2 March 1988, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in language towards a noncommissioned officer. 5. The applicant's unit commander informed him on 27 April 1988 that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, based on a pattern of misconduct, with his service characterized as under honorable conditions. His commander cited, as the reason for his proposed separation action, the applicant's repeated incidents of failing to obey orders, bad checks, and NJP. The applicant was advised of his right to consult with legal counsel, submit statements in his own behalf, and to waive his rights in writing. 6. The applicant consulted with legal counsel on 28 April 1988 and was advised of the basis for the contemplated separation action for misconduct, its effects, the rights available to him, and the effect of any action taken by him in waving his rights. He elected not to submit a statement in his own behalf. 7. The applicant acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He further acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 8. The separation authority approved the recommendation for separation on 28 April 1988, under the provisions of Army Regulation 635-200, paragraph 1-12b, and directed the issuance of a General Discharge Certificate. The applicant was discharged accordingly on 6 May 1988. 9. There is no evidence that indicates the applicant applied to the ADRB for an upgrade of his discharge. 10. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's (ARBA) Medical Advisor/Psychologist. It states: a. The ARBA Case Management Division requested a medical advisory opinion review of this case for medical condition(s) not considered during the applicant's separation processing. Specifically: (1) Does the available record reasonably support that PTSD or other boardable behavioral health conditions existed at the time of the applicant’s military service? (2) Did these conditions fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) warranting a separation through medical channels? (3) Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military? (4) Any additional information deemed appropriate. b. Sources: AHLTA (no records); limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer (JLV) (in system); applicant supplied evidence submitted with his application; and records supplied in file. c. He is contending his misconduct is attributable to his documented bipolar disorder. Although his records lacked evidence of behavioral health treatment in the Army, an excellent note of 29 July 2004 available in the JLV covered both, in-service and after-service psychiatric problems. The JLV also showed he was assigned a service-connected disability rating of 100 percent by the VA. VA diagnoses have included not only bipolar disorder, but cocaine dependence, alcohol dependence, other psychoactive substance dependence, and suicidal ideation. He also had psychiatric hospitalization both during and after his discharge, with at least four psychiatric hospitalizations after his discharge from the Army. d. A VA note of 29 July 1988 makes it clear the applicant was diagnosed with bipolar disorder during his Army service. During manic episodes the applicant, according to the VA note (Compensation and Pension Exam (C&P)) described a history of irritability, slacking, and writing bad checks during his manic episodes. These behaviors are not atypical of persons having a manic episode. Drug use is also common in bipolar disorder. e. As of 2004, the applicant, according to the note, had no sustained periods of remission from his bipolar illness in the 16 years since his discharge from the Army. He had failed to hold jobs, keep housing, establish meaningful relationships, or control his drug use. He told the VA examiner that of all the drugs available to him, legal or illegal, marijuana provided the most benefit to him during manic episodes. The medical evidence is compelling that the applicant had the first full expression of his bipolar illness during his Army service; however, he did have difficulties prior to the Army as well. For example, he described being sexually molested by an uncle and physical as well as emotional abuse by his mother. f. The difficulties shown by the patient appear to have gone on for over a year during his enlistment, and he likely reached a medical retention decision point whilst in the Army. His bipolar disorder would have been boardable. Based on what the ARBA's Medical Advisor is able to reconstruct of the applicant's history, he would have referred him for a medical evaluation board (MEB) prior to his discharge. In light of the fact that his mental illness had its first manifest expression during his Army service, the ARBA's Medical Advisor has concluded his discharge was too harsh and the reason for discharge does not reflect the psychiatric problem that led to his misconduct and general discharge. g. In regard to the referral questions: (a) the applicant's medical records do, at the time of his discharge, reasonably support him having had a boardable medical condition for that period; (b) he did not meet mental-health standards in Army Regulation 40-501 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation); (c) available case material did support the existence of a mitigating mental health condition at the time of his misconduct; (d) based on available behavioral health evidence, there is more than enough mental health evidence to support the view that his misconduct is mitigated because it was the result of bipolar disorder. The ARBA's Medical Advisor also believes that since his misconduct went on for over a year and the applicant has a treatment history of intractable bipolar disorder, an MEB referral would have been the proper disposition for this case. h. Conclusions: (a) The applicant did not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. (b) It is unknown if the applicant's mental health conditions were considered at the time of his separation, but if considered, the correct inferences about the disposition of his case were not made. A review of available documentation discovered evidence of a mental health condition that bears on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was discovered. It also appears he should have been referred for an MEB rather than administratively discharged. 11. The medical advisory opinion was provided to the applicant on 17 July 2017, to allow him the opportunity to submit additional comments or evidence. However, 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 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 2. The Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance on 25 August 2017, relative to the Secretary of Defense Directive of 3 September 2014 pertaining to Discharge Review Boards and Boards for Correction of Military Records, when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions including post-traumatic stress disorder (PTSD); traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) 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. It states: a. 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. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. The physical evaluation board (PEB) appointed counsel advises the Soldier of the PEB findings and recommendations and ensures the Soldier knows and understands their rights. The Soldier records his or her election to the PEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or he may request an extension. 4. Directive-Type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES). It states: a. The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA C&P standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR. e. If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 6. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities. a. Chapter 3, gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual were to remain in the military Service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB. b. Paragraph 3-31 (Diagnosis with Psychotic Features) states the causes for referral to an MEB are as follows: diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function within 1 year of onset of treatment or mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. c. Paragraph 3-33 (Anxiety, Somatoform, or Dissociative Disorders) states the causes for referral to an MEB are as follows: persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment, or persistence or recurrence of symptoms resulting in interference with effective military performance. DISCUSSION: 1. The applicant contends his general discharge should be upgraded to honorable and his records should be amended to show a separation for medical reasons. He bases his contentions on a diagnosis of bipolar disorder. 2. The evidence shows the applicant's discharge proceedings under the provisions of Army Regulation 635-212 for unfitness were administratively correct and in conformance with applicable law and regulations in effect at the time. 3. However, based on the ARBA Medical Advisor/Psychologist's assessment of the applicant's case and evidence, and based on the August 2017 clarifying guidance, his mental health condition could be considered as mitigating for the misconduct that led to his discharge. 4. In the applicant's case, his record of indiscipline consisted of failure to follow orders and instructions, poor performance, disrespect toward his superiors, and rendering dishonored checks. The medical advisor indicated these behaviors are not atypical of persons having a manic episode. 5. The ARBA's Medical Advisor/Psychologist also indicated that a review of available documentation discovered evidence of a mental health condition during the applicant's active duty service that should have been addressed through medical channels instead of by administratively separating him. 6. The available evidence supports the applicant was suffering from bipolar disorder prior to his discharge. Bipolar disorder is a condition that requires an MEB when it is suspected the condition may fail to meet retention standards. 7. The advisory official opines the applicant should have been referred for an MEB. An equitable resolution based on the evidence in this case may be to refer his case to the IDES for review and any action deemed appropriate based on that review. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003718 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2