ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 February 2019

	DOCKET NUMBER:  AR20160014051


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions 
discharge (GD) to fully honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

DD Form 293 (Application for the review of Discharge from the Armed Forces of the 
United Sates)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records 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 was unaware he was suffering from major depressive 
disorder and should have been sent to a doctor.

3.  The applicant was counseled on several occasions for being late or absent without 
leave from duty.  

4.  He accepted non-judicial punishment on two separate occasions for being absent 
without authority.

5.  On 25 June 1986:

     a.  The applicant’s immediate commander notified his intent to initiate separation 
action against him for unsatisfactory performance under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-2a 
(unsatisfactory performance).  The commander stated the action was based on the 
applicant's continued failure to respond to counseling and his unsatisfactory 
performance of duty.  He was advised of his rights pertaining to the separation action.

   b.  He acknowledged he was advised by consulting counsel of the basis for the 
contemplated action to separate him under the provisions of chapter 13-2a of Army 
Regulation 635-200.  He acknowledged that he understood he might expect to 
encounter substantial prejudice in civilian life if a GD was issued to him.  He did not 
submit statements in his own behalf.
   
6.  On 27 June 1986, an authorized official directed he be released from active duty 
under the provisions of Army Regulation 635-200, chapter 13-2a.  It was directed his 
service be characterized as under honorable conditions.

7.  On 10 July 1986, he was discharged as directed.  He completed 2 years, 6 months, 
and 27 days of net active service this period.

8.  The applicant's medical records were not available for review.

9.  There is no evidence showing he had a diagnosis of a disabling condition that 
rendered him unable to perform the duties required of his MOS or grade, or a medical 
evaluation that warranted his entry into the Physical Disability Evaluation System 
(PDES).  

10.  There is no indication the applicant applied to the Army Discharge Review Board 
for an upgrade of his discharge.

11.  On 10 August 2018, the Agency's psychiatrist provided the following opinion:

     a.  The applicant’s available military records are void of documentation of any 
Behavioral Health diagnosis to include the diagnosis of depression.  While on active 
duty, the applicant was not psychiatrically hospitalized, was not prescribed any 
psychiatric medications and received no duty-limiting psychiatric profiles.  

    b.  Review of the Department of Veteran's Affairs (VA) electronic medical record  
indicates the applicant is 70% service connected for Major Depressive Disorder.  It is 
important to understand a VA finding of service connection does not necessarily mean 
the individual was suffering from said service connected condition while on active duty. 
The determination of whether or not an individual suffered from said service connected 
condition while on active duty is made by reviewing the military records.  Review of the 
applicant’s military records are void of documentation of any depressive symptoms. In 
fact, there is no documentation of the applicant having any Behavioral Health conditions 
at all while on active duty.  There is insufficient evidence to support the applicant’s 
contention the unsatisfactory performance which led to his GD was due to an underlying 
depressive disorder such as Major Depressive Disorder.




12.  On 14 August 2018, the applicant was provided a copy of the advisory opinion for 
comment; however, he did not respond.

13.  In reaching its determination, the Board can consider the applicant's petition, his 
statements, and the FSM's service record, in light of the published Department of 
Defense guidance on equity, injustice, or clemency.

14.  Army Regulation 635-200 sets forth the requirements and procedures for 
administrative discharge of enlisted personnel.   Chapter 13 of this regulation provides for 
separation due to unsatisfactory performance.  Service of Soldiers separated because of 
unsatisfactory performance under this regulation will be characterized as honorable or 
under honorable conditions.
15.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for 
disabilities which were incurred in or aggravated by active military service.  The VA 
does not have the authority or responsibility for determining physical fitness for military 
service.  The VA awards disability ratings to veterans for service-connected conditions, 
including those conditions detected after discharge, to compensate the individual for 
loss of civilian employability.
  
BOARD DISCUSSION:

After review of the application and all evidence, two Board members determined there is 
insufficient evidence to grant relief, while one Board member granted relief stating the 
general discharge was excessive for AWOL and UCMJ for failure to prepare.

?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:X	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: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.


	 					___________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.


ADMINISTRATIVE NOTE(S):

Not Applicable

?
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 635-200 sets forth the requirements and procedures for administrative 
discharge of enlisted personnel.  
   a.  Chapter 13 of this regulation provides for separation due to unsatisfactory 
performance when in the commander's judgment the individual will not become a 
satisfactory Soldier; retention will have an adverse impact on military discipline, good order 
and morale; the service member will be a disruptive influence in the future; the basis for 
separation will continue or recur; and/or the ability of the service member to perform 
effectively in the future, including potential for advancement or leadership, is unlikely.  
Service of Soldiers separated because of unsatisfactory performance under this regulation 
will be characterized as honorable or under honorable conditions.
	b.  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.
3.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with 
authority to retire or discharge a member if they find the member unfit to perform military 
duties because of physical disability.  The U.S. Army Physical Disability Agency, under 
the operational control of the Commander, U.S. Army Human Resources Command 
(HRC), is responsible for administering the Physical Disability Evaluation System 
(PDES) and executes Secretary of the Army decision-making authority as directed by 
Congress in chapter 61 and in accordance with Department of Defense 
Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, 
Retirement, or Separation).

     a.  The objectives of the system are to:

*	maintain an effective and fit military organization with maximum use of 
available manpower
*	provide benefits for eligible Soldiers whose military service is terminated 
because of service-connected disability
*	provide prompt disability processing while ensuring that the rights and 
interests of the government and the Soldier are protected

     b.  Soldiers are referred to the PDES when:

*	they no longer meet medical retention standards in accordance with Army 
Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
*	receive a permanent physical profile rating of 3 or 4 and are referred by an 
MOS/Medical Retention Board
*	are command-referred for a fitness-for-duty medical examination
*	are referred by the Commander, HRC

     c.  The PDES assessment process involves two distinct stages:  the medical 
evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the 
MEB is to determine whether the service member's injury or illness is severe enough to 
compromise his/her ability to return to full duty based on the job specialty designation of 
the branch of service.  A PEB is an administrative body possessing the authority to 
determine whether or not a service member is fit for duty.  A designation of "unfit for 
duty" is required before an individual can be separated from the military because of an 
injury or medical condition.  Service members who are determined to be unfit for duty 
due to disability are either separated from the military or are permanently retired, 
depending on the severity of the disability and length of military service.  Individuals who 
are "separated" receive a one-time severance payment, while veterans who retire 
based on disability receive monthly military retired pay and have access to all other 
benefits afforded to military retirees.

     d.  The mere presence of medical impairment does not, in and of itself, justify a 
finding of unfitness.  In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his/her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty.  A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

4.  Army Regulation 635-40 establishes the Army 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/her office, grade, 
rank, or rating.  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.

5.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for 
disabilities which were incurred in or aggravated by active military service.  However, an 
award of a higher VA rating does not establish error or injustice on the part of the Army.  
The Army rates only conditions determined to be physically unfitting at the time of 
discharge which disqualify the Soldier from further military service.  The VA does not 
have the authority or responsibility for determining physical fitness for military service.  
The VA awards disability ratings to veterans for service-connected conditions, including 
those conditions detected after discharge, to compensate the individual for loss of 
civilian employability.  These two government agencies operate under different policies.  
Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting 
the percentage of disability based upon that agency's examinations and findings.

6.  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.

7.  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 (TBI); 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. 

8.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and BCM/NRs 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 type 
of court-martial.  However, the guidance applies to more than clemency from a 
sentencing in a court-martial; it also applies to other corrections, including changes in a 
discharge, which may be warranted based on equity or relief from injustice.  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, BCM/NRs 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.  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)	 AR20160014051
	
4

1