ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170000382 APPLICANT REQUESTS: An upgrade of his under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 young, and he did not know what the value of being in the military. He did not mean to harm the building or person. In 1973, he went to the psychology ward; he was told he had a mental breakdown. He is getting help at Veteran Affairs (VA) now. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 14 July 1972. b. He accepted non-judicial punishment on/for the following: * 30 October 1972, assault; his punishment consisted of forfeiture of pay, extra duty, and restriction * 17 April 1973, absence without leave on 4 April, 5 April, and 11 April 1973, his punishment included reduction to private/E-1 c. FBI record number 8XX8XX H charge sheet shows the following charges by Boston Police Department on/for the applicant: * 4 June 1973, for using without authority * 10 June 1973, larceny motor vehicle * d. On 12 September 1973, a memorandum reflected that the applicant was confined in the hands of civil authorities, assigned to Headquarters Company, 5th Basic Combat Training Brigade e. DA Form 20B (insert sheet to DA Form 20) record of court martial conviction shows the applicant was AWOL from on or about 24 September 1973 until on or about 12 November 1973. f. DA Form 3836 (Notice of Return of US Army Member From Unauthorized Absence) shows that the applicant was absent from 8 September 1973 until 11 November 1973 when he was returned to military control at Fayetteville military police desk and was dropped from the rolls on 8 November 1973. g. On 11 January 1974, he was convicted by a special court-martial of one specification of being AWOL from 24 September 1973 until 12 November 1973. The court sentenced him, in part, to confinement at hard labor for 100 days. On 25 January 1974 the convening authority approved the sentence. h. On 11 February 1974, special court-martial order number 449 suspended forfeiture of $100 per month for 3 months until 20 April 1974, and on 21 March 1974, special court-martial order number 698 stated effective 27 March 1974, the unexecuted portion of the approved sentence to confinement at hard labor for 100 days is suspended until 20 April 1974. i. On 13 June 1974, the applicant was evaluated at Psychiatry, Fort Campbell, KY. The diagnosis was paranoid personality disorder, moderate, chronic, as manifested by suspiciousness, feelings that he is being discriminated against, extra sensitivity to blows to his pride, episodes of uncontrollable violence, history of inability to relate to authority, tremendous fear of passivity; precipitating stress: routine military duty, premorbid personality; predisposition: severe traumatic ghetto background, desertion of father at an early age, being inordinately, close to a somewhat overpowering mother; degree of impairment: moderate-to-marked, depending upon flexibility of people in positions above him. Recommendation was environmental manipulation or administrative separation. j. On 13 September 1974, the applicant was evaluated at psychiatry at Fort Campbell. His diagnosis was antisocial personality disorder with paranoid features, moderate, chronic, manifested by irresponsibility, impulsivity, inability to feel guilt or learn from experience and punishment, low tolerance for frustration, tendency to blame others and suspiciousness. External precipitating stress; routine military duty. The psychiatrist recommendation was he be administratively separated from the service but under conditions allowing him eligibility for VA benefits. k. The applicant’s record is void of any separation documents. However, his service record contains a DD Form 214 (Report of Separation from Active Duty) that shows he a. was discharged on 18 October 1974, under the provisions of Army Regulation (AR) 635-200 paragraph 13-5b(2) in the rank of private/E-1 with an under honorable conditions discharge. He was assigned Separation Code JMB (Unsuitability - Character and Behavior Disorder). His DD Form 214 reflects: * he served a total of active service of 1 year, 9 months and 8 days and he had 180 days of lost time * he was awarded the National Defense Service Medal, Marksman Badge (M-16), and Sharpshooter Badge (Grenade) 4. On 7 February 2017, Case Management Division (CMD), notified the applicant that he must provide a copy of the medical documents that supports his mental issue of a medical breakdown no later than 8 May 2017. 5. On 28 March 2017, the applicant responded and stated that his application for correction of military records (AR20170000382) had a portion of the documents (extract from Statement of Psychiatric/Psychological Evaluation) required at that time. He has requested his medical records for his treatment at Fort Campbell from the National Personnel Records Center to obtain his complete treatment record. Please consider this letter as his request to keep his case pending until he receives his records and can send them to CMD. 6. On 24 April 2017, CMD requested Army Review Board Agency (ARBA) Clinical Psychologist/Psychiatrist reviewed the applicant’s case for the following reasons: * Does the available record reasonably support post-traumatic stress disorder (PTSD), or another boardable behavioral health condition(s) existed at the time of the applicant's military service? * Did this condition(s) fail medical retention standards in accordance with AR 40-501, warranting a separation through medical channels? * Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant's discharge from the military? * In accordance with Title 10, U.S. Code, Section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? * Any additional information deemed appropriate? 7. On 27 April 2017, the ARBA Medical Advisor/Psychologist reviewed the applicant's DD Form 149, and records, and rendered an advisory opinion in his case: a. The applicant did meet medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the Applicant's era of service. b. The applicant's mental-health conditions were considered at the time of his discharge from the Army. c. A review of available documentation did not discover evidence of a mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered. 8. On 27 April 2017, the applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond as of 31 December 2018. 9. By regulation, AR 40-501 (Medical Services – Standards of Medical Fitness) chapter 3 (Retention Medical Fitness Standards) sets forth the various medical conditions and physical defects which normally render a member unfit for further military service. a. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. b. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Paragraph 13-5b(2) states character and behavior disorders. As determined by medical authority, character and behavior disorders and disorders of intelligence as suggested by various symptoms as enuresis or somnambulism, except for combat exhaustion and other acute situational maladjustments, when such disorders are chronic and recalcitrant to attempts at rehabilitation and interfere with the serviceman's ability to adequately perform his duties. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service and the misconduct involving some of a criminal and serious nature, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/21/2019 X CHAIRPERSON Signed by: 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 13-5b(2), in effect at the time, provides for separation of members for unsuitability due to personality disorders (changed from “character and behavior disorders” effective 30 March 1976). It states as determined by medical authority, personality disorders and disorders of intelligence as suggested by various symptoms as enuresis or somnambulism, except for combat exhaustion and other acute situational maladjustments, when such disorders are chronic and recalcitrant to attempts at rehabilitation and interfere with the serviceman’s ability to adequately perform his duties. c. Paragraph 5-3, currently in effect, provides for separation under Secretarial plenary authority. It is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. 3. AR 635-5-1 (Separation Program Designator Codes), in effect at the time, stated that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code of "JMB" was the correct code for Soldiers separating under paragraph 13-5b(2) of AR 635-200 by reason of unsuitability - personality disorder. 4. AR 40-501 (Medical Services – Standards of Medical Fitness) chapter 3 (Retention Medical Fitness Standards) sets forth the various medical conditions and physical defects which normally render a member unfit for further military service. 1. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. 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 prescribed in AR 40-501, which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 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 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. 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. //NOTHING FOLLOWS//