BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160003869 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. 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: 3 April 2018 DOCKET NUMBER: AR20160003869 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 3 April 2018 DOCKET NUMBER: AR20160003869 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 his character of service be changed from under honorable conditions (general) to honorable. He also requests deletion of the current narrative reason for separation. 2. The applicant states his chronic medical conditions, which began while on active duty, directly affected his duty performance. These conditions required multiple surgeries; he was offered a medical discharge on numerous occasions. Upon discharge from active duty, he was placed in the U.S. Army Reserve (USAR) for a period of 6 years. On 5 March 1996, he received an honorable discharge (from the USAR). He states it was also explained that once the Reserve obligation was met, his active duty discharge would be upgraded. He further indicated he requested a copy of his medical records (he gave no indication when he might be able to send them to the Board for consideration). 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 1990 and his USAR honorable discharge orders. 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 1 March 1988. After completing basic combat training (BCT) at Fort Leonard Wood, MO, he was assigned to Redstone Arsenal for advanced individual training in military occupational specialty (MOS) 27E (Land Combat Electronic Missile System Repairer). He arrived on 28 May 1988, but did not complete MOS training. 3. Between 22 March and 27 April 1989, the applicant was administered four counseling statements due to his failure to be at his appointed place of duty at the time prescribed (i.e., failure to repair (FTR)). In each case, he acknowledged the counseling. 4. On 27 April 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice; he was charged with one FTR. 5. Between 19 June and 21 October 1989, his chain of command gave him five additional counseling statements for FTR and one addressed disobeying an order. 6. The applicant accepted NJP on 16 November 1989 for two instances of FTR. 7. Between 10 and 19 January 1990, his chain of command counseled him, in writing, for FTR on four more occasions (by that point, he had received a total of 13 FTR-related counseling statements). a. The counseling statement, dated 11 January 1990, shows the applicant's commander affirmed he had counseled the applicant and told him one more disciplinary infraction would mean he would face separation under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). b. The commander noted the applicant had repeatedly missed formations and showed no respect for authority, rules, or regulations. The applicant had received more chances than any other individual in the unit because of his medical problems and due to recent additions to his family. Since both of these situations were stable, the applicant had no more reasons for missing formation. 8. On 25 January 1990, the applicant's commander at Redstone Arsenal notified the applicant in writing of his intent to separate him under the provisions of chapter 13, AR 635-200. The applicant's continued FTR was stated as the reason for this proposed action. 9. On 31 January 1990, the applicant consulted with counsel (a military lawyer) and acknowledged counsel had advised him the basis for the contemplated separation action was unsatisfactory performance. a. The applicant’s elections show he requested representation by counsel, and he acknowledged he understood he might encounter substantial prejudice in civilian life if he were issued a general character of service. b. He further acknowledged he understood he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade to his character of service. He acknowledged he understood the act of considering his request by the ADRB or the ABCMR did not imply his request would be granted. c. He submitted the following statement to the separation authority: * his only request was the separation authority take into consideration the medical problems that caused him not to complete training, and asked to be granted an honorable discharge * he contended he would have graduated long ago, were it not for his medical problems * he never had sinus problems before entering the military, and during his third week of training, he was told he had a severe sinus infection that required surgery * he underwent surgery after graduating from BCT, and shortly after his arrival at Redstone Arsenal, he again began to have trouble with his sinuses; he was in and out of many military hospitals since that time, and had more than seven surgeries * he was subsequently told his sinus problems were caused by allergies, and not all of his surgeries were necessary * he recognized all this did not justify his FTR, but the surgeries seemed unnecessary and he became unmotivated; nonetheless, the only disciplinary issues he had were FTR, some excused and others not 10. On 13 February 1990, the separation authority approved the commander's recommendation, and directed the applicant receive a character of service of general under honorable conditions. The applicant was released from active duty on 1 March 1990. 11. His DD Form 214 shows he completed 2 years and 1 month of net active service. Item 11 (Primary Specialty) states, "None." The DD Form 214 shows in: * item 23 (Type of Separation) – Relief from Active Duty * item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – paragraph 13-2, AR 635-200 * item 26 (Separation Code (SPD)) – "LHJ" * item 28 (Narrative Reason for Separation) – "Unsatisfactory Performance" 12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. The applicant provides Orders Number D-03-625293, dated 5 March 1996, issued by the U.S. Army Reserve Personnel Center (later redesignated as the U.S. Army Human Resources Command). These orders show he was honorably discharged from the USAR, effective 5 March 1996. 14. On 21 September 2017, the Case Management Division (CMD), Army Review Boards Agency (ARBA), requested the applicant send medical documentation that supported his claimed medical conditions. He did not respond. Subsequently, on 28 November 2017, the ARBA senior medical advisor reviewed the available records and provided an advisory opinion. a. The applicant's available service record revealed the following: (1) Standard Form (SF) 88 (Report of Medical Examination), dated 31 July 1987, shows no record of any surgeries, seizures, or hospitalizations. (2) SF 88, dated 1 November 1989, indicates the applicant had deviated nasal septum (surgery July 1988), chronic sinusitis, and a history of seizures that had existed prior to service (EPTS). The examination also showed eight hospitalizations for chronic sinusitis and two for upper respiratory infection. Item 74 (Summary of Defects and Diagnoses) listed diagnoses of chronic sinusitis and migraine headache. Item 75 (Recommendations – Further Specialist Examinations Indicated) made a reference to the applicant's referral to ENT (Ears, Nose, and Throat, i.e., otolaryngology) for evaluation by a medical evaluation board (MEB)/physical evaluation board (PEB). (3) DA Form 3822-R (Report of Mental Status Evaluation), dated 15 February 1990, stated there was no evidence of mental defect or disorder; the applicant was found to be poorly motivated for further service and was deemed likely to continue to be an administrative problem in the future. He was cleared for administrative action. (4) SF 93 (Report of Medical History), undated, but completed as part of the applicant's administrative separation processing under chapter 13, AR 635-200, identified a number of medical issues, to include frequent/severe headaches, dizziness/fainting spells, and ENT trouble (i.e., chronic/frequent colds and sinusitis). (5) SF 88, dated 8 February 1990, indicated the applicant was cleared for full duty; there were references made to an unavailable addendum for a physical taken on 27 October 1989 for MEB/PEB purposes. This form also states the applicant was cleared for active duty with no reason for a physical profile. The applicant had a history of outstanding problems prior to entry on active duty which probably warranted a more thorough investigation and would most likely have barred him from entry on active duty. This form shows a profile with no limitations and reflects he was qualified for chapter 13 separation. b. A limited review of the Department of Veterans Affairs (VA) Joint Legacy Viewer (JLV) listed no problems and no medical notes (looking as far back as 1983). A single x-ray report was found, dating from 1991; the applicant does not currently appear to have any service-connected medical issues. c. Based on the ARBA senior medical advisor's review, the following were determined: * the available record did not reasonably support the presence of any behavioral health conditions during the applicant's active service; additionally, none of his medical conditions failed medical retention standards * he met medical retention standards for headaches/migraine, chronic recurrent sinusitis, septal deformity (status-post surgery, 1988), trouble sleeping, chest pain/pressure, EPTS history of seizures, EPTS hearing deficit, and other physical, medical, and/or behavioral conditions * his medical conditions were duly considered during separation processing * his medical conditions did not mitigate his 13 documented instances of FTR; there was no evidence of a medical disability or condition that would support changing the applicant's character of service or reason for discharge * should the applicant's complete service treatment records become available in the near future, the foregoing medical advisory could be amended 15. On 30 November 2017, CMD provided the applicant a copy of the medical advisory for review and comment. He did not submit a response. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a - an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A Soldier may be separated under the provisions of chapter 13 when it is determined that he is unqualified for further military service due to unsatisfactory performance. Criteria include: * in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale * it is likely that the Soldier will be a disruptive influence in present or future duty assignments * it is likely the circumstances forming the basis for initiation of separation proceedings will continue or recur * the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely 2. AR 635-5-1 (SPD) states "LHJ" is for Soldiers involuntarily released from active duty based on "unsatisfactory performance." The referenced authority is chapter 13, AR 635-200. DISCUSSION: 1. The applicant received 13 written counseling statements and two NJP’s for FTR. Based on these instances, his chain of command initiated separation action against him under the provisions of chapter 13, AR 635-200. The evidence of record appears to show his separation action was accomplished in compliance with applicable regulations in effect at the time, and there is no indication of procedural errors that would have jeopardized his rights. 2. The applicant contends he was told once his Reserve obligation was met, his active duty character of service would be upgraded. The Army has never had a policy where a character of service was automatically upgraded. Every case before the ABCMR is decided based upon its own merits. 3. He also requests the current narrative reason for separation be deleted, and, in effect, asks for it to be replaced with more favorable wording. a. By regulation, the narrative reason for separation is based on the separation authority and SPD code. In this case, the applicant was released from active duty under the provisions of chapter 13, AR 635-200. The associated SPD code is "LHJ" and the accompanying narrative reason is "unsatisfactory performance." b. Given the evidence supports that regulations were appropriately followed with regard to his separation processing and separation document preparation, there does not appear to be an error or injustice. 4. The applicant asserts his performance while on active duty was directly related to his chronic medical conditions. These medical conditions began during his active service, required multiple surgeries, and, he states, resulted in numerous offers for a medical discharge. a. A review by the ARBA senior medical advisor affirmed the applicant had a number of medical conditions, but all met medical retention standards. In addition, the medical conditions discovered in his available service records did not serve to mitigate his 13 documented instances of FTR. b. While the ARBA senior medical advisor noted an amendment to the advisory opinion might be warranted should a complete copy of the applicant's medical records become available, he otherwise found no evidence of a medical disability or condition that would support changing the applicant's character of service or reason for discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003869 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003869 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2