ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 March 2020 DOCKET NUMBER: AR20170001569 APPLICANT REQUESTS: correction of his general discharge under honorable conditions to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Extract, DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), Applicant, dated 23 January 1978 * Memorandum, Company B, 1st Battalion, 23d Infantry Regiment, dated 7 March 1978, subject: Expeditious Discharge Program * Extract, Medical Records, Bureau of Prisons, dated 2 March 2011 and 25 October 2016 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 5 set forth the conditions under which enlisted personnel may be discharged for the convenience of the government with service characterized as honorable or under honorable conditions, as appropriate. b. Paragraph 5-31 (Expeditious Discharge Program) provided that members who demonstrated they cannot or will not meet acceptable standards may be separated when they have failed to respond to counseling. No member will be awarded a character of service of under honorable conditions under this paragraph unless given the opportunity to consult with appointed counsel for consultation. Separation authorities may award an honorable character of service if an under honorable conditions character of service is recommended by the initiating commander. 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 (BCMRs) regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 the underlying causes of his actions and poor attitude that resulted in his general discharge under honorable conditions were undiagnosed medical conditions, to include post-traumatic stress disorder, attention deficit hyperactivity disorder, and bipolar disorder. Additionally: a. He was stationed at Camp Hovey in South Korea near the demilitarized zone between 1977 and 1978 while under "red alert" and he perceived they were ready to start the Korean war all over again. b. He injured his knees in service while jumping off platforms and out of troop transport vehicles, which now causes his knees to dislocate without warning. c. His medical records from the Bureau of Prisons show he has had behavioral health issues for years. 3. He enlisted in the Regular Army on 5 April 1977. Upon completion of basic combat and advanced individual training, he was assigned to Camp Hovey, Korea. 4. On 23 January 1978, he accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty on 26 November 1977 and for using disrespectful language toward a superior noncommissioned officer at or about 0635 hours on 19 December 1977. 5. The memorandum from Company B, 1st Battalion, 23rd Infantry, dated 7 March 1978, subject: Expeditious Discharge Program, initiated action to eliminate him from the U.S. Army under the provisions of paragraph 5-31, Army Regulation 635-200, wherein his commander stated: a. The applicant has become a strain on the unit's personnel assets due to the constant supervision he requires. He lacks initiative and has proved undependable in response to unit standard operating procedures and Army regulations. His failure to respond to administrative or non-judicial action, informal counseling, and formal counseling reflects his general state of apathy. b. The applicant has proved to be disruptive to his squad, platoon and company. It is apparent he does not sincerely desire to become a functional Soldier. 6. On 7 March 1978, his immediate commander informed him of his proposed recommendation for involuntary discharge. The applicant initialed that he voluntarily consented to discharge from the U.S. Army. He acknowledged he understood: a. that if he were issued a General Discharge Certificate, he may expect to encounter substantial prejudice in civilian life; b. he has been provided the opportunity to consult with counsel; c. prior to the date the discharge authority approves his discharge, he may withdraw his voluntary consent; and d. if he declined to accept this discharge voluntarily, he may at a future date, if his conduct so warrants, be subject to separation under other provisions of the law or regulation. 7. On 7 March 1978, the company commander's request for the applicant's expeditious discharge was forwarded to the approving authority and noted: * he recommended issuance of a General Discharge Certificate * the applicant received nonjudicial punishment twice * the applicant was counseled on four occasions 8. On 8 March 1978 consistent with the chain of command recommendations, the separation authority approved the request for discharge for failure to meet acceptable standards for continued active service and directed issuance of a General Discharge Certificate. 9. On 5 April 1978, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-31. His DD Form 214 (Report of Separation from Active Duty) shows: * he completed 1 year and 1 day of net active service during this period * he completed 7 months and 23 days of foreign service during this period * his overseas assignment in the Republic of Korea from 13 August 1977 through 5 April 1978 10. On 3 March 2020, the Army Review Boards Agency Psychologist provided an advisory opinion wherein she stated: a. There is no evidence in the applicant's medical or personnel records to support a behavioral health diagnosis at the time of his discharge. The applicant was diagnosed with bipolar disorder in 2005 while in prison. However, there are no indications he had bipolar disorder 27 years earlier. b. A review of the applicant's electronic Department of Veterans Affairs medical records indicated he does not have a service-connected disability. On 13 March 2013, his psychiatrist reported diagnoses of type II (no manic episodes requiring hospitalization) bipolar disorder and epilepsy. She could not confirm the diagnosis of attention-deficit/hyperactivity disorder (no past medication for the disorder and no clear symptoms or history of symptoms). c. The applicant met retention standards at the time of his discharge. There is no behavioral health diagnosis to consider with respect to mitigation of his misconduct. Additionally, a diagnosis of type II bipolar disorder would not mitigate the behaviors that led to his discharge. 11. On 13 March 2020, the Army Review Boards Agency Case Management Division provided copy of the medical advisory to the applicant. The letter advised that the ABCMR can adopt the advisory opinion recommendation in whole, in part, or reject the recommendation, based on the Board's analysis of the facts and circumstances of his case. As a result, the processing of his application was placed on hold for 15 days to allow the applicant the opportunity to submit comments. 12. As of 28 March 2020, there have been no additional comments or evidence from the applicant. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the commander’s request for discharge and the reason for his separation. The Board considered the review and conclusions by the medical advising official regarding his mental health condition claim. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct and the he provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001569 6 1