IN THE CASE OF: BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160005895 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: 16 January 2018 DOCKET NUMBER: AR20160005895 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: 16 January 2018 DOCKET NUMBER: AR20160005895 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 1978 discharge under other than honorable conditions (UOTHC) to honorable. 2. The applicant states: a. In 1978 after coming home from Korea, he was stationed at Fort Ord, California, and his great grandmother who raised him passed. He requested emergency leave to attend her funeral and his commanding officer didn't let him go. He went anyway and that was the reason for his separation. His discharge was handled without him being present and he never received any documents for 1976, 1977, or 1978. b. During his tour in Korea, he suffered from a bipolar disorder and hearing loss. He was diagnosed with bipolar disorder by the Department of Veterans Affairs and has suffered for many years. 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 October 1973 for a period of 2 years. On 4 February 1974, he was honorably discharged under the provisions of Department of the Army Message 011510Z, dated August 1973, subject: Evaluation and Discharge of Enlistees Before 180 Active Duty Days. 3. He enlisted again in the Regular Army on 7 November 1974 for a period of 3 years. 4. Between April 1975 and October 1975, nonjudicial punishment was imposed against him on six occasions for: * missing movement through neglect * disobeying a lawful order and failing to go at the time prescribed to his appointed place of duty * breaking restriction * being absent without leave (AWOL) from 19 August 1975 to 29 August 1975 * disobeying a lawful command and breaking restriction * being AWOL from 17 October 1975 to 29 October 1975 5. His records are void of the specific facts and circumstances surrounding his discharge action; however, his DD Form 214 (Report of Separation from Active Duty) for the period ending 3 November 1975 shows he was discharged UOTHC on 3 November 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13. He completed 11 months and 16 days of active service during this period with 11 days of lost time. The separation program designator JLB shown on his DD Form 214 represents unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. 6. He enlisted a third time in the Regular Army on 20 July 1976 for a period of 3 years. 7. He served in Korea from 30 November 1976 to 30 November 1977. 8. He was AWOL from 15 May 1978 to 24 September 1978. 9. On 26 September 1978, he underwent a separation physical examination and was found qualified for separation with a physical profile rating of "1" under the hearing and ears and psychiatric functional factors. Item 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination), dated 26 September 1978, shows he was rated normal. His Standard Form 93 (Report of Medical History), dated 26 September 1978, also shows he denied depression or excessive worry. 10. He was AWOL from 29 September 1978 to 2 October 1978. 11. On 2 October 1978, court-martial charges were preferred against him for the two AWOL periods. 12. On 5 October 1978, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge, he was guilty of the charge(s) against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration (currently known as the Department of Veterans Affairs), he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected not to make a statement in his own behalf. 13. On 23 October 1978, the separation authority approved his voluntary request for discharge and directed the issuance of a Discharge Certificate UOTHC. 14. On 30 October 1978, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 1 year, 10 months, and 1 day of creditable active service and he accrued 160 days of lost time. His service was characterized as UOTHC. 15. There is no evidence showing he was diagnosed with any mental health condition. 16. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 17. An advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 10 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 misconduct. c. He met medical retention standards for recurrent low back pain, bilateral knee pain (chondromalacia patellae), history of skin infection (boil), history of fungal foot infection (athlete's foot, tinea pedis or equivalent), history of right thumbnail injury, hemorrhoids, paraphimosis status post-circumcision, and other physical, medical, and/or behavioral condition. d. His medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. f. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses (multiple AWOLs and other misconduct, including possible fraudulent enlistment) which led to his separations from the Army. 18. A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 2. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. a. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric b. A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records to carefully consider the revised post-traumatic stress disorder criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with post-traumatic stress disorder by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 4. 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 Service Boards for Correction of Military/Naval 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; 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, on 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's contention he suffered hearing loss during his tour in Korea was noted. On 26 September 1978, he underwent a physical separation examination and was found qualified for separation with a physical profile rating of "1" under hearing and ears. 2. Although he contends he was suffering from bipolar disorder, there is no evidence showing he was diagnosed with any mental health condition prior to his discharge. His Standard Form 88, dated 26 September 1978, shows he was rated normal for psychiatric features. His Standard Form 93, dated 26 September 1978, shows he denied having depression or excessive worry. 3. Although he contends his discharge was handled without him being present, the evidence of record shows he consulted with counsel on 5 October 1978 and he voluntarily requested discharge. 4. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 5. The type of discharge directed and the reason for his discharge were appropriate in accordance with the Army policies in effect at the time of his separation. 6. The Army Review Boards Agency Senior Medical Advisor determined the applicant did not have mitigating medical or behavioral health conditions for the offenses (multiple AWOLs and other misconduct including possible fraudulent enlistment) which led to his separations from the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005895 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005895 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2