ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2019 DOCKET NUMBER: AR20160013127 APPLICANT REQUESTS: An upgrade of his entry level status discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 14 July 2016 * DD Form 214 (Certificate of Release or Discharge From Active Duty), for the period ending 23 September 1986 * State of North Carolina Complaint In Summary Ejectment, dated 12 July 2016 * State of North Carolina Magistrate Summons, dated 20 July 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is requesting an upgrade of his discharge because he suffered from post-traumatic stress disorder (PTSD) and adjustment disorder at the time of his discharge. 3. The applicant enlisted in the Regular Army on 6 March 1986. 4. The applicant's commander was notified on 24 July 1986, by the Chief, Inpatient Psychiatry Department at the Dwight D. Eisenhower Army Medical Center, Fort Gordon, GA, regarding the results of the applicant's psychiatric evaluation. The notification certified that the applicant was evaluated during his hospitalization from 11 July through 24 July 1986. a. The applicant was evaluated due to his history of chronic difficulty adjusting to military duty since he was first assigned to advanced individual training (AIT); his restart of his training program, repeatedly; and his receipt of a field grade Article 15 for disciplinary problems. b. The psychiatrist that evaluated the applicant stated that a review of his "present" difficulties in the context of earlier behavior patterns revealed he had long-standing maladaptive personality traits that persisted without modification or change. He was diagnosed with "(Axis I) Adjustment disorder with mixed disturbance of emotions and conduct" and "(Axis II) Mixed personality traits with histrionic and dependent traits." c. The evaluating psychiatrist found: (1) The applicant met the induction and retention standards prescribed in chapters 2 and 3 of Army Regulation 40-501 (Standards of Medical Fitness) and there was not psychiatric disease or defect that warranted disposition through medical standards. (2) He was mentally competent and able to appreciate any wrongfulness in his conduct, and to conform his conduct to the requirements of the law. He had the mental capacity to understand and participate in board or other administrative proceedings. (3) His condition and the problems were not amenable to further hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military. It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful. d. The psychiatrist commented that the applicant's return to duty would probably lead to a repletion of such responses as were noted prior to his hospitalization and that further attempts at rehabilitation within the military framework would be fruitless. The recommendation of the psychiatrist was to administratively separate him as expeditiously as possible. 5. The applicant was counseled on 6 August 1986. The DA Form 4856-R (General Counseling Form) shows he stated his desire to be "out of the Army." His senior noncommissioned officer stated he was having difficulty adjusting to the military and his behavior patterns and attitude toward the military were substandard. He recommended the applicant's separation from the Army. 6. The applicant was counseled on 14 August 1986. The DA Form 4856-R shows he was referred for counseling by his platoon sergeant for elimination from the service. The applicant's first sergeant stated he had been evaluated by a psychiatrist at the hospital and it had been recommended that he be discharged. His first sergeant stated that he was not motivated and was a disruptive influence in his platoon as he required constant supervision to accomplish tasks. His first sergeant recommended his discharge from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11. 7. A DA Form 4856, dated 15 August 1986, shows the applicant was counseled regarding his desire to be discharged from the Army. The counselor noted that he had been a slow to non-productive Soldier in the course and in the platoon, he had been "turned back" several times, and he was becoming a disruptive force in the course as well as his platoon. 8. The applicant was counseled again on 15 August 1986 and during this session, he was counseled regarding being a poor student with no motivation and no desire to remain in the Army. 9. The applicant was notified on 29 August 1986 that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 11, under the Trainee Discharge Program. His commander cited his "difficulty adjusting to military and unable to adapt to military life" as the basis for his recommendation. He acknowledged receipt of the notification and waived his right to seek legal counsel. 10. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, chapter 11, under the Trainee Discharge Program. The separation authority approved the recommendation for discharge on 18 September 1986 and directed that the applicant's service be uncharacterized. 11. The applicant was discharged on 23 September 1986, under the provisions of Army Regulation 635-200, paragraph 11-3a, due to entry level status performance and conduct. a. Item 24 (Character of Service) of his DD Form 214 contains the entry "Entry Level Status" as opposed to the entry "Uncharacterized" as directed by the separation authority. b. His DD Form 214 shows he completed 6 months and 18 days of net active service this period; however, he had less than 180 of service from the time of his enlistment until the time that action to eliminate him from the service was initiated. 12. The applicant's record is void of documentation that shows he suffered from or was treated for PTSD or PTSD-like symptoms. His records do indicate he was diagnosed with adjustment disorder. However, his Standard Form 88 (Report of Medical Examination) indicates his adjustment disorder "is now improving" and he met medical retention standards in accordance with Army Regulation 40-501. 13. During the processing of this case an advisory opinion was obtained from the Army Review Boards Agency Clinical Psychologist, who noted and opined: a. A review of the applicant's military records indicates that while in an entry level status, he demonstrated that he was not qualified for retention as evidence by his multiple counseling statements and psychiatric evaluation which indicate he could not adapt socially or emotionally to military life. b. His chain of command and his psychiatrist both felt that his inability to adjust to military life was not amenable to further training, reclassification, transfer, disciplinary action, hospitalization or treatment. c. Consequently, he was separated under the provisions of Army Regulation 635-200, chapter 11-3, due to entry level performance and conduct. d. Based on the available information, the provision under which the applicant was discharged was appropriate. 14. The applicant was provided a copy of the advisory opinion for his information and/or possible rebuttal. He did not respond. 15. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. 16. Army Regulation 635-200 provides the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the appropriate separation characterization was provided during the applicant’s entry level status. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 September 1986, is missing an important entry. As a result, amend his DD Form 214, for the period ending 23 September 1986, by showing his character of service was "Uncharacterized." REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501, states that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. 3. 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. An under honorable conditions (general) characterization may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. This provision applied to individuals who had demonstrated they were not qualified for retention because they: * could not adapt socially or emotionally to military life * lacked the aptitude, ability, motivation, or self-discipline for military service * demonstrated characteristics not compatible with satisfactory continued service 4. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. Separation under this chapter applied to Soldiers who were in an entry-level status (i.e., had completed no more than 180 days of continuous active duty before the date of the initiation of separation action). An uncharacterized description of service was required for separation under this chapter. 5. The Secretary of Defense directed, on 3 September 2014, that the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) carefully consider revised 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. 6. The Secretary of Defense provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. a. Guidance documents are not limited to under other than honorable discharge characterizations, but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160013127 6 1