BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160007027 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: 8 May 2018 DOCKET NUMBER: AR20160007027 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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 June 1980, to show: a. he was medically separated instead of showing he was released from active duty by completion of required active service; b. he was separated in the rank/grade of private first class (PFC)/E-3 instead of the rank/grade of private (PV1)/E-1; and c. a different, unspecified separation code instead of the separation code "LBK." 2. The applicant further requests a personal appearance before the Board if he is not granted an upgrade of his discharge. 3. The applicant states, in effect, that he didn't realize he was mentally sick. His chain of command offered him a chapter 13 and he didn't know what that meant. They gave him a mental evaluation, which concluded he had significant mental illness. He asked for a medical separation while on active duty but no one would talk to him about it. He further states he completed all three years of his enlistment. 4. The applicant provides: * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 3 February 2016 * a military medical document with several entries dated in August 1978 * DA Form 3822-R (Report of Mental Status Evaluation), undated * Standard Form 93 (Report of Medical History), dated 12 January 1979 * DD Form 214, for the period ending 20 June 1980 * VA Form 10-10m (Medical Certificate), dated 14 November 1994 * VA Form 21-526b (Veteran's Supplemental Claim for Compensation), dated 7 September 2012 * VA Form 21-4138, dated 8 February 2016 * VA Form 21-4138, dated 22 March 2016 * Certificate of Disability for Nonvisible Handicap, City of Fayetteville, NC, updated * nine VA medical documents (clinical record, medication, and progress notes), completed on various dates 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 21 June 1977. He completed his initial entry training and was awarded military occupational specialty (MOS) 36H (Dial/Manual Central Office Repairman). The highest rank/grade he attained while serving on active duty was PFC/E-3. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 27 September 1978, for failing to obey a lawful order from a noncommissioned officer (NCO) on or about 7 September 1978. 4. Summary Court-Martial Order Number 2, issued by Headquarters, 7th Infantry Division Support Command, Fort Ord, CA on 25 January 1979, shows the applicant was found guilty on 24 January 1978 of violating Article 86 of the UCMJ; specifically, failing to go to his prescribed place of duty, to wit: the communications and electronic shop, on or about 1450 hours 7 November 1978. 5. The applicant's sentence included the forfeiture of $279 pay per month for one month, reduction to the grade of E-1, and restriction for 60 days. The sentence was adjudged on 24 January 1978 and approved and ordered executed on 25 January 1979. 6. The applicant accepted NJP on the following occasions, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ): a. on 2 May 1979, for willfully disobeying a lawful order from an NCO and being disrespectful in deportment toward an NCO on or about 1 March 1979; and b. on 30 November 1979, for being disrespectful towards two NCOs on or about 27 November 1979. 7. The applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge process. However, a Fort Ord (FO) Form 4-714 (Type of Discharge/Character of Service Determination), dated 13 March 1980, indicates he was being processed for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). This form, which was initiated by the applicant's company commander, shows the following: a. Section I: A summary of the applicant's period of enlistment, promotions/reductions, awards, and disciplinary actions. b. Section II: A statement where the applicant was not eligible for an Army Good Conduct Medal at the time of his separation due to misconduct. c. Section IV: A recommendation for the applicant to be separated from the Army with an under honorable conditions (general) discharge based on his Article 15s, summary court-martial, writing bad checks, and being a non-productive Soldier. d. Section IV further stated that if a general discharge certificate is designated by an officer not a field grade officer, then the designation must be reviewed by a field grade officer in the chain of command. If, after reviewing the member's record, the field grade officer determines it appropriate to change the type of discharge certificate to honorable, he/she must complete Section V. e. Section V does not contain any entries or remarks. 8. The applicant's record is void of evidence that shows he was counseled on, or acknowledged receipt of a notification memorandum pertaining to, the type of discharge for which he was being considered. 9. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 35 (Record of Assignments), the entry "REFRAD" [Release from Active Duty] effective 20 June 1980 10. The applicant was REFRAD on 20 June 1980, in the rank/grade of PV1/E-1. The DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-200, chapter 2, by reason of completion of required service (expiration term of service (ETS)). His DD Form 214 further shows he was issued the separation code "LBK" and his service was characterized as under honorable conditions (general). 11. The applicant's record is void of evidence that shows he had an unfitting medical condition(s) that required his referral for processing through the Army's Physical Disability Evaluation System (PDES). Additionally, there is no indication in his record, nor did he provide any, that he requested or discussed a medical discharge with his chain of command. 12. Orders D-04-018892, issued by Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administrative Center (RCPAC), St. Louis, MO on 28 April 1983, honorably discharged the applicant from the Ready Reserve effective 19 May 1983. 13. The applicant provides the following documents: a. A military medical form, dated in August 1978, which shows he was treated for a foot condition and returned to duty. Included on this form is a note that shows on 21 August 1978, the applicant requested to talk to the physician assistant concerning a medical discharge. b. An undated DA Form 3822 (Report of Mental Status Evaluation), which shows the applicant's name, grade and social security number. This form is not filled out, indicating he did not receive a mental status evaluation prior to his separation. c. Standard Form 93 (Report of Medical History), dated 12 January 1979, which shows he received an examination on 12 January 1979 for the purpose of receiving a chapter 13 (Unsuitability). It shows he had no medical issues or concerns. d. Multiple VA Forms requesting assistance, claim compensation, and medical documents from the VA, dated after his separation date starting in the year 1994. 14. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 15. In the processing of this case, an advisory opinion was obtained on 28 September 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. This official opined: a. A review of all available military medical records revealed encounters for left foot pain and his request to talk to the PA concerning a medical discharge. b. A review of all available VA medical records revealed encounters dated in 1994 listing the following problems/medical issues: anxiety disorder, schizophrenia paranoid type, bipolar disorder, heart disease, diabetes, neck pain, back pain, shoulder pain, hypertension, cannabis dependence, and other conditions. The VA awarded the applicant 20 percent service connected disability for superficial scars. c. The applicant met medical retention standards for history of foot pain, elevated blood pressure, and other physical, medical and/or behavioral conditions in accordance with Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. d. The applicant's medical conditions were duly considered during his separation processing. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. 16. The applicant was provided a copy of the advisory opinion on or about 2 October 2017 to afford him the opportunity to respond to its content. However, 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. The regulation provides that 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. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 635-40 establishes the 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 that an MEB is 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. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance on rating disabilities. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 4. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel upon ETS. Chapter 2 outlines discharge or release from the active Army upon termination of enlistment, and other periods of active duty or active duty for training. It outlines periods of military service required of all member of the Army will be in accordance with applicable laws. An enlisted member whose term of service expires or who otherwise becomes eligible for separation will be release from active duty and in accordance with statutory authority will be transferred to the USAR to complete their obligation. Further they will not be discharged until completion of their reserve obligation. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, provided instructions for separation documents which are prepared for individuals upon retirement, discharge, or release from active military service. It establishes standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. 6. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code "LBK" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, chapter 2, as a result of completion of required service. 7. 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 post- traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. 8. 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 correction of his DD Form 214 to show he was medically separated instead of showing he was released from active duty by completion of required active service; he was separated in the rank/grade of PFC/E-3 instead of PV1/E-1; and to show a different, unspecified separation code instead of the separation code "LBK." 2. The applicant contends his chain of command had offered to separate him under the provisions of Army Regulation 635-200, chapter 13, and he was given a mental evaluation that determined he was mentally sick. He asked for a medical separation, to no avail. 3. The applicant submitted a medical history document that indicates he was given a medical examination on 12 January 1979 for the purpose of receiving a chapter 13 separation. He also provides an undated DA Form 3822-R that indicates he never received a mental status evaluation, as evidenced by it not being complete and lacking the signature of a medical professional. 4. Notwithstanding a single entry on a single form, in which the applicant requested to speak with a physician assistant regarding a possible medical separation, there does not appear to be service-specific documentation that corroborates his contention that he was diagnosed or evaluated with behavioral health issues during his period of active military service. 5. While it appears the applicant was initially considered for possible separation under chapter 13 provisions, his DD Form 214 shows his chain of command elected to allow him to separate at the end of his three year active duty service obligation. A thorough review of his military record reveals no evidence of his referral for processing through the PDES prior to his separation as a result of any unfitting medical conditions that would warrant a medical separation discharge. 6. In accordance with applicable laws and regulations, an applicant must be found physically unfit to perform his/her duties as a result of their medical condition(s) by the PDES in order to be considered for medical separation. There is no evidence to this in this case. 7. The ARBA Senior Medical Advisor opined after a thorough review of the applicant's available medical records, at the time of his ETS, he met medical retention standards in accordance with applicable regulatory guidance. There was no evidence of a medical disability or behavioral condition(s) which would have resulted in him being processed through medical channels. Accordingly, the ARBA Senior Medical Advisor opined that there is no evidence to support a change to the reason for the discharge in the applicant's case. 8. The evidence of record shows the applicant received three Article 15s for disobeying orders and disrespecting NCOs, and a summary court-martial for failing to go to his prescribed place of duty. His summary court-martial conviction reduced him in grade to PV1. He was not promoted again during the remaining months of his active military service. 9. The applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, chapter 2, by reason of completion of required service. Absent that reason, there was no fundamental reason to process him for discharge. The underlying reason for his discharge was the completion of his active duty service obligation. The only valid narrative reason for separation permitted under that chapter is "completion of required service (ETS)" which is correctly shown on his DD Form 214. Additionally, the applicable regulation and policy established shows the separation code of "LBK" was the correct separation code assigned to an enlisted Soldier separated under that regulation and chapter. 10. The applicant's request for a personal appearance hearing, contingent upon not receiving an upgrade of his discharge, was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the ABCMR or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160007027 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. ABCMR Record of Proceedings (cont) AR20160007027 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007027 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2