ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  4 April 2019

	DOCKET NUMBER:  AR20160016242


APPLICANT REQUESTS:  his characterization of service be changed to an honorable 
characterization and his narrative reason for separation be changed to a medical 
separation based on post-traumatic stress disorder (PTSD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Department of Veterans Affairs Benefits Decision Letter, dated 11 March 2016

FACTS:

1.  The applicant did not file within the 3 year time frame provided in Title 10, United 
States 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 was suffering with prior mental health conditions that were 
aggravated by his service causing him to develop PTSD.  He states that while in the 
Army he suffered from depression and sleep deprivation related to his PTSD.  He is 
rated by the VA at 100 percent service-connected for PTSD.

3.  After a brief period in the delayed entry program, the applicant enlisted in the 
Regular Army on 2 August 1983 in the pay grade of E-3.  The applicant completed his 
initial training and was awarded a military occupational specialty (MOS).  His first duty 
station was Fort Meade, Maryland effective 12 December 1983. 

4.  His records show he was frequently counseled by members of his chain of command 
for various infractions, including: 

*	continuously poor room maintenance [repeated offenses]; failure to be prepared 
for unit inspections
*	personal appearance not in compliance with regulatory requirements
*	personal finances (failure to pay debts) for which he received counseling through 
the Army Community Services and advised he could receive nonjudicial 
punishment for writing worthless checks
*	failure to notify chain of command he had severe financial problems [applicant 
said it was bank error]
*	questioning the authority of his superiors by saying his financial affairs were his 
problem, not theirs
*	failure to obey lawful orders of his superiors
*	dereliction of duty
*	breaking company imposed restriction; lack of compliance with Article 15, 
Uniform Code of Military Justice (UCMJ) proceedings and punishment 

5.  The applicant underwent a psychiatric evaluation in July 1984 at the request of his 
unit commander for possible homosexual tendencies.  He denied any previous or 
current homosexual activities or any incidents of propositioning another male for 
homosexual activities.  He appeared neat and appropriate and was cooperative during 
the interview.  He was oriented in all spheres and exhibited no evidence of perceptual 
disorders, suicidal, or homicidal ideation.  His thought process and memory was intact.  
His libido was normal, insight was fair and judgment appeared good.  His mood was 
level and his affect was appropriate to mood and thought content.  There was no 
diagnosis of a mental disorder and he met the retention standards prescribed found in 
Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  He concluded by 
stating the applicant was motivated to continue working as a Military Policeman.  
However, the applicant did appear to have limited social skills and would benefit from 
counseling. 

6.  On 6 August 1984, he was counseled concerning having "inappropriate" pictures of 
nude men in his military wall locker.  Upon finding the pictures, his chain of command 
sent him to Behavioral Heath for a psychological evaluation concerning his possible 
retention or elimination from service. 

7.  On 11 October 1984, an approval authority approved a bar to reenlistment imposed 
on the applicant for patterns of misconduct. 

8.  On 9 November 1984 he received a letter of reprimand from his company 
commander for breaking restriction imposed during the proceedings of nonjudical 
punishment.  The letter states, in effect, that on 22 October 1984 he refused to comply 
with orders to receive his influenza immunization administered by air pressure injection.  
His conduct was noted as inappropriate and immature.  He was then instructed to go to 
the hospital to get his influenza immunization by shot during approved sick call hours.  
The applicant left the company area and went directly to the hospital violating the orders 
of his superiors and breaking restriction. 

9.  On 16 November 1984 he received a second letter of reprimand from his unit 
commander because he had 20 rounds of live ammunition in his living area in addition 
to government keys that he was not authorized to have in his possession.  These 
infractions were in violation of Army regulations. 

10.  His service record shows he accepted nonjudicial punishment under the provisions 
of Article 15, UCMJ for: 

*	stealing (larceny) of government property on or about 27 July 1984
*	impersonating a Military Police Criminal Investigation Officer by taking the 
credentials and conducting a traffic stop on or about 14 August 1984
*	failure to obey a lawful order of a superior noncommissioned officer (NCO) to 
change into the proper uniform for duty on or about 9 November 1984
*	wrongfully buy a military police badge, which was the property of the 
U.S. Government which he knew to be stolen property on or about 30 December 
1984

11.  On 6 November 1984 the applicant underwent a mental status evaluation.  His 
DA Form 3822-R (Report of Mental Status Evaluation) shows no diagnosis.  He was 
found to be fully alert, his mood was level, his thought process was clear and his 
thought content was normal.  He had the mental capacity to understand and distinguish 
right from wrong, and to adhere to the right.  He met the retention standards of Army 
Regulation 40-501, chapter 3. 

12.  On 15 November 1984, his immediate commander notified him of his intent to 
initiate separation action against him in accordance with chapter 13 of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance.  
He advised the applicant of his rights. 

13.  As required by regulation, the applicant prepared Standard Form 93 (Report of 
Medical History) wherein he stated he was undergoing a separation physical and that 
he was in good health.  He did have a history of headaches, eye trouble, a previous 
head injury and treatment for his bladder prior to entrance onto active duty.  He also 
indicated he had frequent trouble sleeping and depression or excessive worry.  The 
medical provider indicated the headaches could be attributed to his prescription 
eyewear.  

14.  He underwent a physical examination in preparation for his separation.  A Standard  
Form 88 (Report of Medical Examination) was prepared.  The medical provider 
indicated there were no physical defects or diagnoses and based on that finding he had 
no recommendations or referrals for specialist examinations.  The applicant was found 
qualified for continued service with no profile limitations or duty restrictions. 

15.  On 26 November 1984, the applicant acknowledged receipt of the commander's 
intent to separate him.  He consulted with legal counsel and was advised of the basis 
for the contemplated separation action for unsatisfactory performance, the type of 
discharge he could receive and its effect on further enlistment or reenlistment, the 
possible effects of this discharge, and of the procedures/rights available to him.  He also 
elected to submit statements on his own behalf.  He indicated he:

*	understood he could expect to encounter substantial prejudice in civilian life if a 
general discharge under honorable conditions were issued to him
*	understood that as a result of the issuance of a discharge under other than 
honorable conditions, he could be ineligible for many or all benefits as a veteran 
under Federal and State laws
*	understood if he received a discharge less than honorable, he could make 
application to the Army Discharge Review Board (ADRB) or the ABCMR for 
upgrading; however, an act of consideration by either board does not imply that 
his discharge would be upgraded

16.  The applicant prepared a rebuttal statement in response to his pending separation.  
He acknowledged he had made mistakes but wanted a second chance to make things 
right and a transfer into a new MOS.  He had always dreamed of a career as a Soldier 
and had been a member of the Junior Reserve Officers' Training Corps in high school.  
He is proud to wear the Army uniform.  Unfortunately, the deaths of his grandparents 
while in service caused him duress.  He voluntarily was going to counseling to deal with 
the pressures of life.  Even with his bar to reenlistment, he remained in the service when 
he knew he could have gotten out earlier.  He asked for leniency. 

17.  Following the applicant's acknowledgment, the applicant's immediate commander 
initiated separation action against him in accordance with chapter 13 of Army 
Regulation 635-200 due to unsatisfactory performance.  The immediate commander 
opined that the applicant had not demonstrated any potential for future benefit to the 
military and that his continuous pattern of unsatisfactory performance portrayed his lack 
of ability to function in the military.  Other disposition was not feasible because the 
applicant failed to respond to any efforts to assist him in becoming an adequate Soldier.  

18.  On 11 December 1984, the separation authority approved the administrative 
discharge and ordered the applicant discharged under the provisions of chapter 13 of 
Army Regulation 635-200 by reason of unsatisfactory performance and directed 
issuance of a General Discharge Certificate.  The applicant was discharged on 
17 December 1984.

19.  The DD Form 214 he was issued confirms he was discharged for unsatisfactory 
performance under the provisions of Army Regulation 635-200, chapter 13, with his 
service characterized as under honorable conditions (general).  This form further 
confirms he completed 1 year, 4 months, and 16 days of creditable active military 
service.  This form shows in:

*	item 26 (Separation Code) – JHJ
*	item 28 (Narrative Reason for Separation) – Unsatisfactory performance

20.  There is no indication he applied to the Army Discharge Review Board for an 
upgrade of his discharge within that board's 15-year statute of limitations.

21.  As evidence to support his application, the applicant provided a VA benefits letter 
attesting to the fact because he is incarcerated his VA disability compensation was 
reduced effective 15 November 2015.  He is incarcerated for a felony conviction.  By 
law, he cannot be paid the full amount while incarcerated.  He was advised that upon 
his release he could restore his benefits provided the VA was notified in writing.  The 
applicant is 100 percent service-connected for PTSD and major depressive disorder 
(also claimed as social anxiety).  

22.  On 14 February 2019, the Army Review Boards Agency (ARBA) staff psychiatrist 
provided an advisory opinion.  The advisory found the available documentation showed 
the applicant met medical retention standards for all medical conditions and there was 
no indication for physical disability evaluation system processing now or at the time of 
his service.  There was no mitigating nexus between his mental health (depression and 
anxiety) and repeated unsatisfactory performance with acts of intentional misconduct 
while in service.  There is no available evidence supporting a change to his narrative 
reason for separation.  A copy of the complete medical advisory was provided to the 
Board for their review and consideration.

23.  The applicant was provided a copy of the advisory opinion on 15 February 2019 
and given an opportunity to submit comments.  He did not respond. 

24.  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.

25.  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 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.
BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and 
the medical advisory opinion were carefully considered.  The Board applied Department 
of Defense standards of liberal consideration to the complete evidentiary record and did 
not find any evidence of error, injustice, or inequity.  The Board agreed that the 
applicant's discharge characterization was warranted as a result of the misconduct.  
There was no evidence provided that shows he was diagnosed with a medical condition 
during his period of service that may have contributed to his misconduct or warrant 
consideration by a PEB.

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):  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, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

	a.  Chapter 13 set forth the requirements and procedures for administrative separation 
of enlisted personnel.  Chapter 13 provided for separation of enlisted personnel when it 
was determined he or she was unqualified for further military service.  Commander will 
separate Soldier when in the commander’s judgment, the Soldier would not develop 
sufficiently to participate satisfactorily in further military training and/or become a 
satisfactory Soldier.  Commanders must consider the seriousness of the circumstances 
warranting separation and the effect of retention on Soldiers within the unit.  Whether or 
not the Soldier will be a disruptive influence in present or future duty assignments and if 
the circumstances leading to separation will continue in future duty assignments.  The 
Soldier meets medical retention standards found in Army Regulation 40-501 (Standards of 
Medical Fitness).  Prior to initiation of separation action, commanders will insure that the 
Soldier received adequate counseling and rehabilitation.  Finally, Soldiers separated under 
this chapter will have their characterization of service characterized as honorable or under 
honorable conditions warranted by the military record. 

	b.  States 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.

	c.  State 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. 

3.  Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and 
Separation, including Retirement) provides the various medical conditions and physical 
defects which may render a Soldier unfit for further military service and which fall below 
acceptable physical standards.  Paragraph 3-3 states Soldiers whose medical 
conditions fail retention standards are to be referred to a physical evaluation board 
(PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, 
Retirement, or Separation).  The PEB will make the determination of fitness or unfitness 
and then based on law a Soldier will be medically separated or medically retired. 

4.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 
and sets forth policies, responsibilities, and procedures that govern the evaluation for 
physical fitness of Soldiers who may be unfit to perform their military duties because of 
physical disability.

     a.  Chapter 3 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 member reasonably may be expected to perform because of his or her 
office, rank, grade or rating.

     b.  Chapter 4 provides guidance on referring Soldiers for evaluation by a medical 
evaluation board (MEB) when a question arises as to the Soldier's ability to perform the 
duties of his or her office because of physical disability.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160016242

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