IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160004598 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: 9 January 2018 DOCKET NUMBER: AR20160004598 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: 9 January 2018 DOCKET NUMBER: AR20160004598 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 characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 2. The applicant states he did not know three Article 15s would get him kicked out of the service. His platoon leader, a sergeant, did not get along with anyone in the platoon. From the moment he met him, the platoon leader singled him out, which made his environment very stressful. He did his job as instructed and he did not know why he was singled out. The applicant felt he was wronged by the SGT, and he had no one to talk to at that time. a. He now has trouble sleeping, and has a hard time holding down a job for long periods of time. He is irritable, restless, and it is hard for him to get along with other people. b. In addition, while in the Army, his left hand was almost cut off, and he suffers with a lot of pain in his hand and fingers. c. He was young and faced stressful situations in combat and due to that stress, he has difficulties coping. 3. The applicant provides no supporting documentation. 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. On 13 April 1971, the applicant enlisted in the Regular Army (RA). 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 25 September 1971 to 29 December 1971. 4. The evidence of record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on three separate occasions for the following offenses: a. On 16 October 1971, for two specifications of failing to go at the time prescribed to his appointed place of duty, to wit: work formation in Cam Ranh Bay, Vietnam. b. On 26 October 1971, for two specifications of failing to go at the time prescribed to his appointed place of duty, to wit: work formation in Cam Ranh Bay, Vietnam. c. On 1 November 1971, for two specifications of failing to go at the time prescribed to his appointed place of duty, to wit: work formation in Cam Ranh Bay, Vietnam. 5. On 9 November 1971, the applicant underwent a Mental Status Evaluation (MSE) for the purpose of separation. He was found to be normal, fully alert and oriented, thinking clearly, had normal thought content, and a good memory; however, he had a moderate degree of depression. He was also found not to be in need of rehabilitation. The doctor also noted that the applicant was mentally responsible and able to distinguish right from wrong, could adhere to the right, and had the mental capacity to understand and participate in board proceedings. 6. On 9 December 1971, the applicant was notified that his unit commander was recommending him for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The commander stated the discharge was being recommended due to the applicant's frequent incidents of a discreditable nature with military authorities, and an established pattern for shirking. The applicant was further advised that he had the following rights in connection with this action: * to present his case before a board of officers * to submit statements in his own behalf * to be represented by counsel * to waive the above rights in writing 7. On 11 December 1971, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to a personal appearance before a board of officers, and to further counsel. He also elected not to submit statements in his behalf. a. He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. b. He further acknowledged he understood that as a result of an undesirable discharge UOTHC, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 8. On 11 December 1971, the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-212 for unfitness. The commander noted the applicant's frequent incidents of a discreditable nature with military authorities and his established pattern of shirking. The commander requested a waiver of rehabilitative measures due to the applicant's negative response to counseling and other rehabilitative attempts, and his history of offenses and deficient attitudes, which led his superiors to believe rehabilitative measures would be useless. The applicant's commander recommended he receive an undesirable discharge (UD). 9. On 24 December 1971, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness, and directed the issuance of a UD Certificate. 10. On 3 January 1972, the applicant was discharged accordingly UOTHC. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the reason and authority for discharge as Army Regulation 635-212 and a separation program number (SPN) of 386 (Unfitness). He completed 8 months and 21 days of total active service with 4 months and 6 days of foreign service in U.S. Army Pacific (USARPAC) – Vietnam. 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 12. On 16 November 2017, an advisory opinion was obtained from the Army Review Board Agency (ARBA) Staff Psychiatrist, which states: a. A review of the Department of Veteran Affairs (VA) medical record indicates that the applicant is not known to the VA, and he did not submit any supporting civilian medical documentation. b. A review of his medical records indicates he had a PULHES rating of “111111”, with a psychological profile of “S-1” (no psychological impairment). A document entitled “Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)” indicates he received Article 15’s for failure to report on the following dates: 15 October 1971, 25 October 1971, 26 October 1971, 30 October 1971, and 1 November 1971. c. An MSE dated 9 November 1971 shows the applicant had a “normal mental status, except for a moderate degree of depression.” He was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, and able to understand and participate in administrative proceedings. d. A memorandum entitled: “Discharge for Unfitness Under Army Regulation 635-212”, dated 11 December 1971, states: “discharge is because of his frequent incidents of a discreditable nature with military authorities and an established pattern of shirking”. The enlisted member’s conduct and efficiency ratings are as follows: * 26 April 1971 – 11 July 1971 (Conduct – Excellent, Efficiency – Excellent) * 12 July 1971 – 28 September 1971 (Conduct – Excellent, Efficiency – Excellent * 29 September 1971 – 11 December 1971 (Conduct – Unsatisfactory, Efficiency – Unsatisfactory) e. An undated, typed statement from the applicant’s company commander, Captain (CPT) A____ H_____, states, “…[applicant] has had frequent incidents of a discreditable nature with military authority and has established a pattern for shirking. During the past few months, [applicant] has refused to make work formations and do any type of work. He was counseled by me following the dates of receipt of his Article 15’s. During the interview, the enlisted member displayed a negative attitude and refused to do anything…” f. The applicant’s Standard Form (SF) 89 (Report of Medical History) dated 9 November 1971, the applicant answers “NO” to the following queries: “Frequent trouble sleeping?”, “Depression/excessive worry?”, “Loss of memory?”, “Nervous trouble of any sort?”, “Any drug or narcotic habit?”, “Excessive drinking habit?” g. An SF 88 (Report of Medical Examination), dated 9 November 1971, indicates that the applicant is qualified for separation from the military with a PULHES of “111121” with a psychological profile of “S-1” (no psychological impairment.) h. There is no indication in the applicant’s military personnel or medical records that he failed to meet military medical retention standards in accordance with Army Regulation 40-501. There is no documentation of any post-traumatic stress disorder (PTSD) or behavioral health symptoms in his military records. i. In conclusion, based on the information available at this time, there is insufficient evidence to support the applicant’s contention that the misconduct leading to his UOTHC discharge was due to psychiatric reasons. While his records suggest that he may have had some behavioral health issues while in the military, as evidenced by the abrupt decline in his performance ratings in September 1971 and by his separation MSE indicating he had a “…moderate degree of depression,” without appropriate medical documentation, no decision regarding mitigation can be made. 13. The applicant was provided a copy of the advisory opinion for his review and comment. He did not respond. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provides that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an UD was normally considered appropriate. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel. a. 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. 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. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider applications from former service members administratively discharged under other than honorable conditions, and who have since been diagnosed with PTSD by a competent mental health professional. The Boards were to determine if it would be appropriate to upgrade the characterization of an applicant's service, based on the revised PTSD criteria, detailed medical considerations, and mitigating factors. Since this letter, the scope of this review has been extended, de facto, to also include other BH conditions. 4. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations should be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD, or other BH condition, were the causative factor for misconduct, and whether an upgrade was warranted, the following factors were to be carefully considered: * was it reasonable to determine that PTSD, or other BH conditions, existed at the time of discharge? * did the military record contain documentation of a diagnosis of PTSD or other BH condition? * did the applicant provide documentation of a diagnosis of PTSD, or another BH condition, rendered by a competent mental health professional representing a civilian healthcare provider? * was the applicant's condition determined to have existed prior to military service? * was the applicant's condition determined to have been incurred during, or aggravated by military service? * did mitigating factors exist in the applicant's case? * did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * was the applicant's misconduct premeditated? * how serious was the misconduct? 5. Although the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD, or other BH condition, at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. a. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD, or other BH conditions, may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. b. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or other BH conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. c. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); 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. DISCUSSION: 1. The applicant requests an upgrade of his UD to a general, under honorable conditions discharge. 2. The applicant’s record is void of documentation to support his claim that he was singled out by his platoon sergeant, causing him high amounts of stress. In addition, there is no indication that the applicant provided this information to his mental health provider during the mental health evaluation he received prior to his separation. 3. The applicant’s military records are void of evidence that shows he suffered from or sought treatment for mental health issues during the period of his military service. He received a mental health assessment prior to his discharge. The mental health evaluation revealed no signs of psychiatric disorders, other than moderate depression, but cleared him for any administrative board proceedings by his command. The advising psychiatrist found there is insufficient evidence to support the applicant’s contention that the misconduct leading to his discharge was due to psychiatric reasons. 4. The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, for unfitness. His disciplinary history of three NJPs demonstrated a trend of misconduct and established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. 5. The available evidence indicates that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no evidence of procedural errors that would have jeopardized his rights. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004598 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004598 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2