BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160005914 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 BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160005914 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. BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160005914 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, his under other than honorable conditions discharge be upgraded to an honorable discharge for medical reasons. 2. The applicant states, in effect, he doesn't know why he was discharged and he was unfairly treated and picked on to such an extent he would have to defend himself. His commanding officer wanted to give him a medical discharge but he wanted to finish his enlistment. He became frustrated and felt suicidal and was medically disabled at the time of his release. 3. The applicant provides a self-authored six-page statement. 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 22 January 1985. Following the completion of his initial entry training, he was awarded military occupational specialty 13B (Cannon Crewmember). 3. The applicant accepted nonjudicial punishment (NJP) on 22 August 1985 under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 22 July through on or about 24 July 1985. His punishment included reduction to the grade of private (E-1), suspended until 21 November 1985, and forfeiture of $144 pay, suspended until 21 December 1985. A DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 20 September 1985, shows his commander vacated suspension of his punishment after he attempted to use a fellow Soldier's bank card. 4. DA Forms 4187 (Personnel Action) show the applicant was AWOL from on or about 18 October 1985 through on or about 4 November 1985. 5. The applicant accepted NJP on 4 November 1986 under provisions of Article 15, UCMJ, for the wrongful use of cocaine between 1 July 1986 and 14 July 1986, which was detected by biochemical testing of a urine sample that he submitted on 14 July 1986. His punishment included forfeiture of $319 pay per month for 2 months and extra duty and restriction for 45 days. 6. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 1 December 1986 for the following charges and specifications in violation of the UCMJ: a. For three specifications of violating Article 86 of the UCMJ, specifically, for failure to report to his appointed place of duty on three occasions, on or about 27 November 1986, 28 November 1986, and 30 November 1986. b. For three specifications of violating Article 90 of the UCMJ, specifically, for, after receiving a lawful command from his superior commanding officer, willingly disobeying the same on or about 27 November 1986, 28 November 1986, and 30 November 1986. c. For two specifications of violating Article 134 of the UCMJ, specifically, for, after being restricted to the battalion area, breaking said restriction on or about 28 November 1986 and 30 November 1986. 7. The applicant's immediate commander, by memorandum dated 1 December 1986, through his command to the general court-martial convening authority, recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge. 8. The applicant's immediate commander, by separate memorandum dated 1 December 1986, stated his rationale for pre-trial confinement. a. Applicant is currently pending charges and has shown he is a flight risk and a repeated substance abuser. b. Applicant has repeatedly demonstrated a poor attitude toward Amy standards of conduct. He has been punished under Article 15, UCMJ, for substance abuse on 20 March 1986 for THC, on 20 March 1986 for cocaine, and on 4 November 1986 for AWOL on 8 August 1985, 22 August 1985, and 20 March 1986, as well as for failure to repair on 20 March 1986. (Note: only two Article 15s were available for review in his record). c. Applicant has been repeatedly counselled concerning his misconduct. His frequent offenses effect the morale and discipline of other Soldiers in the unit. d. Confinement is necessary as he may not appear before the court-martial and he should be kept away from other Soldiers because of his negative attitude and disrespect of military authority. 9. The applicant's intermediate and senior commanders both recommended, on 3 December 1986 and 4 December 1986, respectively, that the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge. 10. The Staff Judge Advocate recommended that the applicant be tried before a special court-martial. The convening authority approved the recommendation on 12 December 1986, and detailed a court-martial panel. 11. The applicant consulted with legal counsel on or about 15 December 1986 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In doing so, he acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. a. He understood by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of a lesser included offenses(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge. b. He acknowledged he had not been subjected to coercion with respect to his request for discharge and he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. c. He also acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He declined to submit a statement in his own behalf. 12. The Staff Judge Advocate recommended the convening authority disapprove the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of pending court-martial proceedings. 13. The applicant, after consulting with his counsel on 30 December 1986, submitted an "Offer to Plead Guilty" to the charges listed on his DD Form 458. 14. The convening authority denied the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of pending court-martial proceedings on 5 January 1987. Simultaneously, the convening authority accepted the applicant's "Offer to Plead Guilty" on 5 January 1987. 15. The convening authority agreed to approve only so much of the sentence adjudged that was not in excess of confinement for 75 days, forfeiture of two-thirds pay per month for 2 months, reduction to private/E-1, and a bad conduct discharge. Should a bad conduct discharge not be adjudged; however, the convening authority may approve any sentence lawfully adjudged. 16. The applicant consulted with legal counsel on or about 6 January 1987 and again submitted a voluntarily request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. 17. After consultation with the Staff Judge Advocate, the convening authority approved the applicant's request for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He further directed the applicant's reduction to the lowest enlisted grade and the issuance of an UOTHC Discharge Certificate. 18. The applicant was discharged on 23 January 1987. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial; his service was characterized as under other than honorable conditions; and he had lost time from 22 July 1985 through 23 July 1985 and 18 October 1985 through 3 November 1985. 19. The applicant's record is void of evidence that shows he was diagnosed with any medical or mental health condition during his period of military service. His record is also void of any evidence that shows he was unfairly treated or that his commanding officer recommended or discussed a medical discharge. 20. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 16 August 1989. 21. In connection with the processing of this case, an advisory opinion was obtained on 17 July 2017, from the Army Review Boards Agency (ARBA) Clinical Psychiatrist, who opined: a. Documentation reviewed included the applicant's ABCMR application and personal statement, the ADRB case proceedings, his military personnel records, his military medical records, and the VA electronic medical record (Joint Legacy Viewer (JLV)). The electronic military medial record (AHLTA) was not reviewed as it was not in use during the applicant's time in service. No civilian or VA medical documentation was provided by the applicant for review. Additionally, a review of the VA medical record indicates that the applicant is not known to the VA. b. A review of the military medical records indicates the following: (1) A SF 513 (Consultation Sheet), dated 8 October 1986 by a medical doctor, noted the applicant to have had a positive urinalysis for cocaine and THC. The examining physician states that the applicant reported using cocaine once every two weeks and marijuana once a month. On mental examination, the examining physician states, "There is no evidence of a thought disorder." The applicant was diagnosed with Cocaine Abuse, positive urine; Cannabis Abuse, by history. The recommendation for treatment is that the applicant continue attending the Army Drug and Alcohol Prevention and Control Program (ADAPCP). (2) A SF 93 (Report of Medical History), dated 2 September 1983 the applicant indicated the answers "No" to the query "Have you ever had or have you now: Frequent trouble sleeping, loss of memory or amnesia, nervous trouble of any sort;" and he answered "Don't Know" to the query of "Have you ever had or have you now: Depression or excessive worry." (3) A SF 88 (Report of Medical Examination), dated 2 September 1983 indicates the applicant had the following profile: PULHES: 1 1 1 1 2 1. His psychiatric profile is noted to be S1 – no psychiatric disability. c. There is no indication in the applicant's military record that he failed to meet military medical or psychiatric retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). d. There is no indication in the applicant's military medical records that he was supposed to be separated from the Army for medical reasons (as he indicates in his personal statement with his application). There is no indication of any unfitting medical or psychiatric condition which would warrant a Medical Evaluation Board in his medical records. There is no documentation of suicidality in the applicant's military personnel or medical records. e. Based on the information available at this time, there is insufficient evidence to support the applicant's contention that the misconduct leading to his discharge was due to psychiatric or medical reasons. 22. A copy of the advisory opinion was forwarded to the applicant on or about 19 July 2017, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides 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 individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 under other than honorable conditions is normally considered appropriate. 5. 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 the revised PTSD 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 PTSD 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 applicant's service. 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; 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 that his UOTHC discharge be upgraded to an honorable discharge for medical reasons. 2. The available evidence shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army for the good of the service. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. The applicant contends he was treated unfairly and his commander was going to provide him with a medical discharge. His record is void of documentation that shows he was treated unfairly or that shows his chain of command was arbitrary or capricious in their actions. There is no indication in his record that shows his chain of command contemplated a discharge by medical reasons. 5. The applicant's available record is void of documentation that shows he suffered from a medical or mental health condition prior to or during his period active duty service that would have warranted his separation through medical channels. His record shows he went AWOL on two occasions, had multiple Article 15s for infractions including drug use and other misconduct, and, as a result, the separation authority determined his service would be characterized as UOTHC. 6. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions characterization of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 7. The ARBA Clinical Psychiatrist opined that a review of his available medical documentation did not reveal a mental health condition or other medical condition that would have failed to meet medical retention standards in accordance with governing regulations and, therefore, did not necessitate a discharge through medical channels. As such, the evidence does not support a change to the characterization or reason of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005914 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005914 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2