ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 May 2019

	DOCKET NUMBER:  AR20170001388


APPLICANT REQUESTS: in effect, an upgrade of his bad conduct discharge and correction of that discharge to show a medical discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Medical Records (OBH Continuity of Care Data Form)

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 that he requests a discharge upgrade because he had a medical condition that led to his discharge.  Therefore, he should have been discharged on a medical discharge not a bad conduct discharge.  His medical condition of schizophrenia, which began after his entry into the Army, is what led to his discharge.  He should have gone to a medical discharge board and instead of being released for bad conduct.

3.  The applicant provides:

	a.  A copy of behavioral health medical records with a primary diagnosis of Psychotic Disorder and secondary diagnosis of personality disorder.  He was seen as a patient on 18 February 1992.

	b.  A copy of behavioral health medical records with a primary diagnosis of psychotic disorder and a secondary diagnosis of personality disorder.  He was seen as a patient on 20 June 1997.

	c.  A copy of behavioral health medical records with a primary diagnosis of schizophrenia and secondary diagnosis of personality disorder.  He was seen as a patient on 17 September 1998.

4.  A review of the applicant’s service record show the following:

	a.  He enlisted in the Regular Army (RA) on 21 November1978.

	b.  On 3 July 1979, he was convicted by a special court-martial of one specification of unlawful entry of a female Soldier and one specification of assault and battery by grabbing her.  The court sentenced him to six months confinement at hard labor and forfeiture of $275 per month for six months.  The convening authority approved the sentence on 16 April 1979. 

	c.  On 12 September 1980, he was convicted by a special court-martial of one specification of disobeying a noncommissioned officer (NCO), one specification of being disrespectful to an NCO, one specification of assaulting an NCO, three specifications of disobeying an order, and one specification of communicating a threat.  The court sentenced him a bad conduct discharge, to confinement at hard labor for 168 days, and forfeiture of $299 pay per month for 6 months. 

	d.  On 4 December 1980, the convening authority approved the sentence and except for the bad conduct discharge, ordered it executed.  The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review.  

	e.  On 3 February 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

	f.  The applicant was discharged from active duty on 12 June 1981.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations) with a bad conduct discharge.  He completed 2 years, 1 month, and 11 days of active service with 148 days of lost time.  It also shows he was awarded or authorized the Marksmanship 45 Caliber Pistol Qualification Badge.

	g.  On 4 August 1982, the ADRB, after careful consideration of his military records and other available evidence, determined that he was properly discharged. The ADRB denied his request for an upgrade of his discharge.

	h.  On 9 June 2017 a Medical Advisory Opinion was completed and stated that there is insufficient evidence to support his claim contention that his misconduct was due to Schizophrenia which he developed in the military.  As such no statement regarding mitigation can be made.  The available records do not support a boardable diagnosis at the time of discharge and there is no evidence in the applicant’s military records that he failed to meet retention standards in accordance with AR 40-501 (Standards of Medical Fitness).  The applicant’s post service diagnosis of undifferentiated Schizophrenia is not a mitigating factor in his misconduct.

	i.  The applicant provided a rebuttal on 5 July 2017 stating that he disagrees with the Board’s decision in a letter dated 9 June 2017 and requests an opportunity to submit more evidence and requests an extension.  The applicant also provided copies of medical records.

5.  By regulation, AR 635-200, paragraph 11-2 states that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 

6.  AR 40-501 (Medical Fitness Standards for Retention, Promotion, and Separation Including Retirement) states that normally members with conditions listed in this chapter will be considered unfit by reason of physical disability.

7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

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 medical advisory official finding no mitigating factors to his misconduct and subsequent separation and the applicant failing to rebut those findings, the Board concluded that there was no error or injustice which would warrant changing the characterization of service and reason for separation concerning the applicant.

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.


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) in effect at the time, provides for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor.  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.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

	c.  AR 635-200, paragraph 11-2 states that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 based on 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)	 AR20170001388


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