IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20170008088 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20170008088 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. ___________x______________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20170008088 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests upgrade of his discharge under other than honorable conditions (UOTHC) to honorable. 2. The applicant states: a. He was unknowingly suffering from mental illness, specifically depression and schizophrenia, and his discharge does not reflect this situation. b. When he entered the Army, he had difficulty adjusting to military life for unknown reasons. He reported this problem to his company commander, seeking help. About 1 month passed when he was called into his company commander's office to sign some papers. Another 2 weeks passed and he was out of the Army. c. Later in his life he was diagnosed with depression and schizophrenia. He has seen psychiatrists for his mental health illness and has been taking sertraline (antidepressant used to treat depression, obsessive-compulsive disorder, panic disorder, and anxiety) and risperidone (atypical antipsychotic used to treat schizophrenia, bipolar I disorder, and irritability with autism) along with other medications throughout his life, and he is faithfully taking these medications to maintain his health. He was hospitalized at Blue Ridge Behavioral Center in Roanoke, VA, to treat his illness. Any needed reports can be obtained by calling the facility. d. The U.S. Army failed to test him for any mental or emotional problems and he was cast by the wayside. He is seeking a discharge upgrade to honorable in order to receive all of his veterans' benefits. 3. The applicant provides: * self-authored statement, dated 27 March 2017 * CVS pharmacy prescription for risperidone, dated 17 March 2017 * CVS pharmacy prescription for sertraline, dated 9 March 2017 * four medical documents from Roanoke Free Clinic Department of Psychiatry, dated between October 2015 and February 2016 * Department of Veterans Affairs (VA) letter, dated 21 August 2015 * compact disc (CD) containing over 140 supporting documents submitted in support of his Social Security Administration (SSA) disability insurance claim and Supplemental Security Income evaluation CONSIDERATION OF EVIDENCE: 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 29 June 1972. 3. On 26 March 1973, his immediate commander initiated action to separate him from the service for unfitness due frequent incidents of a discreditable nature with civil or military authorities. He was advised he was entitled to present his case before a board of officers, to be represented by counsel of his own selection, and to submit statements in his own behalf. 4. The commander indicated in the initiation action that the applicant was counseled on six occasions between 12 February 1973 and 23 March 1973 regarding his negative attitude toward superiors, noncompliance with unit standards of procedure, responsibility for performing assigned duties, consequences of further misconduct, and the seriousness of the potential discharge. 5. The commander indicated the applicant had received nonjudicial punishment (NJP) three times under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). The corresponding DA Forms 2627-1 (Summarized Record of Proceedings under Article 15, UCMJ) are not in his available records for review. He also stated the applicant's behavior was not a result of unawareness, but rather was willful and intentional. His numerous absences without leave (AWOL) and acts of disrespect were deliberate. He was capable of becoming a satisfactory Soldier; however, all attempts to rectify his problems through rehabilitation were to no avail. 6. A Standard Form 88 (Report of Medical Examination), dated 29 March 1973, shows he did not have any disqualifying defects or diagnoses. 7. A DA Form 3822-R-1 (Report of Mental Status Evaluation), dated 9 April 1973, shows the evaluating doctor rated him as having normal behavior, being fully alert and fully oriented, displaying level mood, thinking clearly with normal thought content, having good memory, and having the mental capacity to understand and participate in the separation proceedings. He did not have a significant mental illness, was mentally responsible, able to distinguish right from wrong and adhere to the right, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 8. In a 19 April 1973 memorandum requesting the applicant's bar to enlistment/reenlistment, his commander stated the applicant was being considered for elimination based on a habitual record of misconduct, including being AWOL five times, disobeying a lawful order, and demonstrating a lack of motivation as evidenced by being dropped from a course due to academic failure. 9. On 20 April 1973, the applicant acknowledged he was counseled and advised of the basis of the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He waived consideration of his case by a board of officers and waived the opportunity to request counsel. He did not submit a statement in his own behalf. 10. A DA Form 3082-R (Statement of Medical Condition), dated 26 April 1973, shows he indicated there had been no change to his medical condition since his last separation examination to the best of his knowledge. 11. There is no evidence of record showing he was diagnosed with or treated for any mental or behavioral health conditions during his period of service. 12. On 14 May 1973, the approving authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13. On 30 May 1973, he was discharged accordingly as a trainee without a military occupational specialty (MOS) and assigned separation program number 28B (Unfitness Due to Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities). His DD Form 214 shows he completed 9 months and 13 days of total active service with 49 days of lost time. His service was characterized as UOTHC. 13. He petitioned the Army Discharge Review Board for a review of his discharge. On 6 November 1981, the board denied his request, stating he was properly discharged. 14. On 30 July 2009, he filed for disability insurance with the SSA due to back problems and headaches, and his alleged inability to function and/or work as of 23 October 2006. He provided a Virginia Department of Rehabilitative Services mental status evaluation, dated 13 May 2010, in support of his claim. 15. The 13 May 2010 mental status evaluation by the Virginia Department of Rehabilitative Services states the applicant was incarcerated from 1976 to 2008 and reported problems with depression while incarcerated. The report states he had no substantial psychiatric history other than receiving group therapy and anger management when first incarcerated from 1976 to 1983. He was prescribed nortriptyline (anti-depressant) and isometh-dichloralphenaxone-acetaminophen (used to relieve tension and migraine headaches) in prison and Vistaril (hydroxyzine, used as a sedative to treat anxiety and tension) for sleep. He had no auditory or visual hallucinations or psychosis. The evaluation shows he was diagnosed with generalized anxiety disorder (mild to moderate) and major depressive disorder (recurrent, mild). 16. His SSA claims were denied. 17. A VA letter to the applicant, dated 21 August 2015, in response to his request for a copy of his DD Form 214, stated that although the VA did not have the document on file, they received verification of service information from the Army showing he served from 29 June 1972 through 30 May 1973 and his service was characterized as UOTHC. 18. He provided four medical documents from the Roanoke Free Clinic Department of Psychiatry, dated 15 October 2015, 3 December 2015, 7 January 2016, and 4 February 2016, showing he visited the clinic on those dates. The document dated 15 October 2015 specifically states the reason for his visit on that date was a follow-up with the psychiatrist. 19. The applicant provided two CVS pharmacy prescriptions in his name, one for resperidone, dated 17 March 2017, and one for sertraline, dated 9 March 2017. 20. The Army Review Boards Agency Psychiatrist provided an advisory opinion on 8 August 2017 wherein she stated: a. She reviewed the applicant's application, the medical documentation he provided, a CD containing his SSA disability insurance and Supplemental Security Income evaluation, his VA electronic record, and his military personnel and medical records. b. His records show the misconduct that led to his discharge UOTHC from the Army consisted of multiple incidents of AWOL, disobeying a lawful order, and numerous counseling statements for disrespectfulness. c. The CD containing his SSA claims and evaluations contained a psychological evaluation by the Virginia Department of Rehabilitative Services conducted by a Doctor of Psychology on 13 May 2010. The evaluation indicated the applicant was incarcerated from 1976 to 2008 and reported problems with depression while incarcerated. The report states he had no substantial psychiatric history other than receiving group therapy and anger management when first incarcerated from 1976 to 1983. He was prescribed nortriptyline (anti-depressant) and isometh-dichloralphenaxone-acetaminophen in prison and Vistaril (sedative) for sleep. He had no auditory or visual hallucinations or psychosis. The evaluation shows he was diagnosed with mild to moderate generalized anxiety disorder and recurrent, mild major depressive disorder. d. A review of his military medical records indicates they contain no documentation of any symptoms of any behavioral health disorders. There is no documentation of any psychiatric hospitalizations or prescriptions for psychiatric medications. There is no indication in his military records that he failed to meet retention standards in accordance with Army Regulation 40-501. e. His civilian medical documentation indicates he has been seen by the Roanoke Free Clinic Psychiatry Department, but no information regarding these visits was provided. His prescription slips indicate he is taking sertraline and risperidone. A psychological evaluation performed by the Virginia Department of Rehabilitative Service, dated 13 May 2010, diagnoses the applicant with mild to moderate generalized anxiety disorder and recurrent, mild major depressive disorder. Neither of these psychiatric conditions were found to be disabling. f. Based on the available documentation, there is insufficient evidence to support the applicant's contention that he developed depression and/or schizophrenia while serving on active duty and these conditions led to his discharge UOTHC. 21. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments or additional evidence. He provided a rebuttal in which stated: a. He requests that the medical advisory opinion be omitted from the record and not be given any consideration due to the psychiatrist's inability to prove a medical timeline for his illness. He reiterates his prior assertion that he suffered from a mental disorder at the time of his service. b. He was an Army volunteer because he wanted a military career. He completed basic combat training with high scores and was placed in supply school at Fort Jackson, SC. While in supply school, he was recruited by the Army to be a boxer and was placed in a special unit where all he did was train for boxing all day and participate in installation and Army-wide boxing competitions. He made it all the way to the competition at Fort Campbell, to box fighters from the entire U.S. Army, the winners of which would be placed on the U.S. Army boxing team. He unfortunately lost his fight at Fort Campbell and returned to Fort Jackson without an MOS. It is not true that he was dropped from an Army course due to academic failure. He was dropped from the course to train to become an Army boxer and he became depressed and was AWOL when he didn't make the boxing team. c. He was only AWOL once, while the opinion states he was AWOL five times. If he had been AWOL five times, he would have received NJP, lost rank, and been given a dishonorable discharge. d. The opinion also states there is no documentation of any behavioral health disorders because he was never tested for any disorder. With all that was going on with him and what was happening to him, the Army failed in its responsibility to find the reason by ordering tests to determine the source of the behavior. In 1973, the Army was simply not addressing mental health illnesses as a medical disorder and many Vietnam veterans returned home with unexamined mental disorders. Even today, the suicide rate is high and no one knows what is going on in a person's mind. e. The psychiatrist states he had a mental health evaluation done on 9 April 1973. Although he doesn't recall this taking place, he will address it. Depression does not mean a person cannot distinguish right from wrong or cannot function in everyday life. It is an illness that overwhelms one with a dark feeling. The fact that he was fully alert and exhibited normal behavior during the evaluation does not mean he didn't suffer from an anxiety or major depressive disorder. More tests should have been conducted. Sometimes medical opinions can be wrong and misdiagnoses result. f. He has a history of psychiatric health problems. After his discharge from the Army, from 1973 through 1975, he had difficulty keeping a job because he was depressed and would withdraw into himself, which caused his incarceration. Once incarcerated, he immediately reported his problems with depression and met with his psychiatrist once a month. That is who prescribed him nortriptyline (used to treat depression). g. Once released from incarceration, he immediately sought help for his illness, but found no programs to help him. He researched and went to Roanoke, VA, where he was hospitalized at the Blue Ridge Behavioral Health Center. He was diagnosed with mild to moderate anxiety disorder and major depressive disorder, although he would argue there are no degrees to mental illness. Sick is sick. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 13, in effect at the time, contained policy and outlined procedures for separating enlisted individuals found to be unfit or unsuitable for further military service. It provided that commanders would separate a member for unfitness when it was clearly established that despite attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was deemed impracticable, or the Soldier was not amenable to rehabilitation measures as indicated by the medical and/or personal history record. 2. The Diagnostic and Statistical Manual of Mental Disorders is published by the American Psychiatric Association and provides standard criteria and common language for the classification of mental disorders. a. Anxiety Disorders. Anxiety disorders include disorders that share features of excessive fear and anxiety and related behavioral disturbances. Fear is the emotional response to real or perceived imminent threat, whereas anxiety is anticipation of future threat. Anxiety disorders differ from developmentally normative fear or anxiety by being excessive or persisting beyond developmentally appropriate periods. They differ from transient fear or anxiety – often stress-induced – by being persistent. The key features of generalized anxiety disorder are persistent and excessive anxiety and worry about various domains, including work and school performance, that the individual finds difficult to control. In addition, the individual experiences physical symptoms, including restlessness or feeling keyed up or on edge; being easily fatigued; difficulty concentrating or mind going blank; irritability; muscle tension; and sleep disturbance. b. Depressive Disorders. Bipolar and depressive disorders are the most commonly diagnosed conditions in psychiatry. Major depressive disorder may occur throughout the range of severity of intellectual disability. Individuals with depressive disorders may present with inability to concentrate. However, poor concentration in mood disorders becomes prominent only during a depressive episode. 3. 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 UOTHC 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 applicants' service. a. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct that served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. b. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. c. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 4. 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, 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, 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 misconduct that led to the discharge. DISCUSSION: 1. The applicant was discharged for unfitness under the provisions of Army Regulation 635-200, chapter 13. His records show he displayed a pattern of unfitness as evidenced by his receipt of NJP on numerous occasions, disobeying a lawful order, disrespectfulness, lack of motivation, and being AWOL multiple times, resulting in 49 days of lost time. 2. He acknowledged he was counseled and advised of the basis of the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200. He waived consideration of his case by a board of officers, waived the opportunity to request counsel, and did not submit a statement in his own behalf. 3. His administrative discharge was accomplished in compliance with applicable regulations without procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 4. Although the applicant claims he suffered from depression and schizophrenia at the time of his discharge, there is no evidence showing he was ever diagnosed with or treated for any mental or behavioral health condition during his military service. 5. He provided a psychological evaluation performed by the Virginia Department of Rehabilitative Service, dated 13 May 2010, wherein he was diagnosed with mild to moderate generalized anxiety disorder and recurrent, mild major depressive disorder. Neither of these psychiatric conditions were found to be disabling by the SSA. 6. The Army Review Boards Agency Psychiatrist advised that the applicant met medical retention standards and a review of the available documentation did not discover evidence of a mental health consideration that bears on the character of the discharge in his case. A mitigating nexus between the applicant's unfitness for service and his mental health was not discovered. There is insufficient evidence to support the applicant's contention that he developed depression and/or schizophrenia while serving on active duty and these conditions led to his discharge UOTHC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170008088 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008088 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2