ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20170003921 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable discharge vice general, under honorable conditions due to permanent disability with 100% service-connection. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form (SF) 86 (Security Clearance Application) * SF 88 (Report of Medical Examination) * DD Form 214 * Letters from Psychiatrist * Medical Exam Report * Department of Veterans Affairs (VA) Rating Decision * VA Summary of Benefits 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 was discharged before service-connected disability could be proven. He has been approved by the VA on 26 January 2017 at 100% service connected disability for Schizoaffective disorder –bipolar type to include post-traumatic stress disorder claimed as anxiety condition, and obsessive compulsive disorder. 3. The applicant provides: a. His SF 86, which shows he answered on item number 19 (Your Medical Record) of application that he did not consult a mental health professional to include psychiatrist, psychologist, or counselor in the last 7 years. b. His SF 88, which shows his psychiatric evaluation was normal and had no significant medical issues. c. A letter from his psychiatrist, dated 26 September 2016, which states he was seen as a patient since 17 May 2016 and that he was unable to perform any kind of job due to severity of his symptoms of Schizoaffective disorder. d. A medical exam report, dated 26 October 2016, which summarizes that he did not adjust well to military life which caused his symptoms, his condition is severe and considered work prohibitive. e. A letter from his psychiatrist, dated 15 December 2016, which states he shows a significant relief of anxiety when accompanied by his dog and therefore it was recommended the dog become a service dog. f. His VA rating decision, dated 20 January 2017, which shows adjustment of monthly entitlement for cost of living for a single veteran with no dependents. g. His VA summary of benefits letter, which shows he has combined service connected rating of 100% effective 1 December 2016. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 19 June 2001. b. On 14 February 2002, he accepted nonjudicial punishment for failing to go to his appointed place of duty on seven occasions. His punishment included reduction to private/E-1. d. His immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 14, paragraph 14-12b (Patterns of Misconduct). e. He consulted with legal counsel who advised him of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He did not submit any statements on his behalf. He waived consulting counsel and representation by military counsel or civilian counsel at no expense to the Government. He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. f. On 22 February 2002, he voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than a general, under honorable conditions discharge. He did not submit any statements on his behalf. g. His immediate commander initiated separation against the applicant under the provisions of AR 635-200, 14-12b (Pattern of Misconduct). h. Consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge. He was issued a General Discharge Certificate. i. On 27 February 2002, the applicant was discharged from the Army under the provisions of AR 635-200, paragraph 14-12b (Patterns of Misconduct) with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 8 months and 9 days of active service. It also shows he was awarded or authorized the Army Service Ribbon. 5. In the processing of this case, the Army Review Boards Agency medical advisor/psychologist reviewed the applicant's case and rendered an advisory opinion on 6 July 2017. The medical professional opined: a. Based on records the applicant may have had prodromal symptoms of a psychiatric illness in early 2002. He demonstrably was not judged disabled until more than 10 years later as his functioning deteriorated and unequivocal symptoms of a psychotic illness emerged. No evidence is provided that he sought psychiatric assistance before 2006. There is insufficient evidence to mitigate the misconduct during his active duty service, though the possibility that he had prodromal symptoms of a serious mental illness supports leniency towards him, which he did in fact receive in the form of a general discharge, albeit at the time he was a Soldier judged to have had a poor adjustment to Army life. The applicant's medical records do not at the time of discharge reasonably support him having a boardable medical condition for that period. It is unknown if the applicant's mental health conditions were considered at the time of his separation. b. 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 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. c. There is no evidence of a mental health consideration(s) 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. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a response. He did not respond. 7. By regulation: a. Action may be taken to separate Soldiers for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. b. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 8. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon a short term of service and multiple UCMJ violations within that short service, 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. 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army Disability Evaluation System 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 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. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: * The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training * he disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence 4. Title 10, U.S. Code, 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 either are 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 upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a 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 or 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. ABCMR Record of Proceedings (cont) AR20170003921 5 1