BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20160004866 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: 30 November 2017 DOCKET NUMBER: AR20160004866 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: 30 November 2017 DOCKET NUMBER: AR20160004866 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 under other than honorable conditions discharge to a general discharge. 2. The applicant states, in effect, he suffered from bipolar disorder and hypertension. He was placed on medication when he was assigned to Fort Carson, CO. He would like an upgrade of his discharge to receive medical benefits and treatment. 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, and 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 29 September 1998. Following completion of training, he was assigned to Fort Carson. 3. On 10 March 1999, the applicant was reported in an absent without leave (AWOL) status from 4th Replacement Detachment, Fort Carson. He returned to military control on 17 March 1999. 4. On 12 April 1999, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the above period of AWOL. His punishment consisted of a forfeiture of pay for 2 months. 5. His DA Form 2-1 (Personnel Qualification Record), shows he was initially assigned to the 32nd Transportation Company, Fort Carson around 12 April 1999. He was later assigned to the 360th Transportation Company, 68th Corps Support Battalion, 43rd Area Support Group, Fort Carson. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ on: a. 11 June 1999, for two specifications of failing to go to his appointed place of duty at the time prescribed. His punishment consisted of a forfeiture of pay (suspended), restriction for 14 days (suspended), and extra duty for 14 days. b. 23 June 1999, for failing to go to his appointed place of duty at the time prescribed on 19 June 1999 and the suspended portion of his punishment was vacated. c. 24 July 1999, for disobeying a lawful order and breaking restriction. His punishment consisted of a forfeiture of pay for 2 months and extra duty and restriction for 45 days. 7. On or about 27 August 1999, the applicant was arrested by the Colorado Springs, CO, police and was charged with harassment. He was sentenced to pay $138 for court cost and attend a 36-week domestic violence group counseling program. 8. On 9 September 1999, the applicant completed a separation physical. His Standard Form (SF) 88 (Report of Medical Examination), shows in item 43 (Summary of Defects and Diagnoses), rule out hypertension. Additionally, his SF 93 (Report of Medical History) shows in item 25 (Physician’s Summary and Elaboration of all Pertinent Data), new onset of hypertension associated with mild postural hypotension. 9. He underwent a mental health evaluation on 14 September 1999. His DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, with an unremarkable mood and affect, and he had clear thought process, normal thought content, and good memory. The clinical psychologist endorsed the form confirming the applicant met the retention standards prescribed in chapter 3, of Army Regulation (AR) 40-501 (Standards of Medical Fitness) and there was no psychiatric disease or defect that warranted disposition through medical channels. The applicant was and is mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. He was cleared for any administrative action deemed appropriate by command. 10. On 2 November 1999, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-5, and 14-12b, of AR 635-200 (Personnel Separations). He cited his reasons as the applicant's misconduct/conviction by civil court consisting of assaulting Ms. LAV on 26 August 1999, breaking restriction on 30 June and 1 July 1999, and failing to repair on numerous occasions between 10 March and 1 July 1999. The applicant was advised of his rights and that he was being recommended for an under other than honorable conditions discharge. He was also informed the final decision in his case rested with the separation authority. 11. The applicant acknowledged receipt of the proposed separation notification. He consulted with counsel who advised him of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights. He made the following choices: * he understood he was being considered for separation under other than honorable conditions * he waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation of no less favorable than under honorable conditions (general) discharge * he elected not to submit statements on his behalf * if the separation authority refused to accept his conditional waiver he requested a personal appearance before an administrative separation board, and counsel * he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him 12. Subsequent to this acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-5, and 14-12b, of AR 635-200. He cited his reasons as the applicant's misconduct/conviction by civil court consisting of assault, breaking restriction, and failure to repair on numerous occasions. His intermediate and senior commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 13. It appears the separation authority disapproved the applicant's conditional waiver. On 6 January 2000, the separation authority directed the convening of an administrative separation board to decide if the applicant should be discharged for misconduct/conviction by civil court and pattern of misconduct, pursuant to AR 635-200, paragraph 14-5 and 14-12b. 14. On 19 January 2000, the applicant again consulted with counsel, and after being advised by counsel, he waived his right to an administrative separation board. He acknowledged he understood his chain of command was recommending an under other than honorable conditions discharge. 15. On 20 January 2000, the separation authority approved the applicant’s discharge in accordance with paragraph 14-12b, AR 635-200, and the issuance of an under other than honorable conditions discharge. 16. The applicant was discharged on 21 January 2000. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, with an under other than honorable conditions discharge. He served 1 year, 3 months, and 23 days of active creditable service. He was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar 17. There is no indication the applicant petitioned the Army Discharge Review Board for a review of his discharge within that Board's 15-year statute of limitations. 18. The applicant’s complete medical records are not available for review. As such, on 26 June 2017, the Case Management Division contacted the applicant requesting his medical record and any other records he may had in his possession to support complete adjudication of his case. He did not respond. REFERENCE: AR 635-200 in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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 the regulation. b. Paragraph 3-7(b) 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION: 1. The evidence of record shows the applicant committed multiple serious offenses or misconduct (assault, breaking restriction, failure to repair, disobeying a lawful order, and being AWOL). Based on his misconduct, his commander initiated separation action against him. 2. He was advised of his rights and after consulting with counsel, he submitted a conditional waiver wherein he waived his right to an administrative separation board in exchange for a general discharge. However, it appears the separation authority disapproved his waiver. He again consulted with counsel and waived his right to an administrative separation board. The separation authority approved his discharge. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. 3. The applicant contends he was suffering from bi-polar (disorder), hypertension, and he was placed on medication for these conditions while at Fort Carson. His complete medical record is not available for review with his case; however, his service records contain a separation physical and a mental status evaluation. a. With respect to him being bipolar, the available evidence contains a DA Form 3822-R that shows he had normal behavior, was fully alert, fully oriented, his mood and affect were unremarkable, he had a clear thought process, with normal thought content, and good memory. The clinical psychologist endorsed this form confirming the applicant met the retention standards prescribed in chapter 3, of AR 40-501 and there was no psychiatric disease or defect that warranted disposition through medical channels. b. With respect to his hypertension, the available evidence contains an SF 88 wherein item 43 shows rule out hypertension and SF 93 shows in item 25 new onset of hypertension associated with mild postural hypotension. It was determined his hypertension did not warrant further medical processing. He was determined to be fit for separation. 4. Based on his overall record of indiscipline, the separation authority believed the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel and his misconduct rendered his service unsatisfactory. The separation authority did not believe the applicant's service rose to the standards required for a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004866 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004866 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2