ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170009865 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) * Letter from Montana Telepsych Solutions Inc., dated 24 October 2014 * United States Senate form to act on applicant’s behalf * Letter from Senator X____, dated 13 November 2015 * Letter from Army Review Boards Agency (ARBA), dated 9 May 2016 * Letter from Senator X____, dated 3 June 2016 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 is requesting discharge characterization be upgraded, due to mental problems that related to his conduct/behavior while serving in the Army. See attached letter from X____, Montana Telepsych Solutions Incorporated. He did not know that he had Bipolar I Disorder while he was in the Army. It wasn’t until recently that he realized he had it for more of his life. It explains his misconduct. He feels that if he had known and if he had been treated/medicated for the disorder, he would have been able to serve honorably. 3. The applicant provides: a. Letter from Montana Telepsych Solutions Inc., dated 24 October 2014, which states the applicant has been treated in that office for the past 12 months for Bipolar I Disorder. It is her belief that the applicant has had Bipolar Disorder for more of his life a. and his behavior while he was enlisted in the Army was related to his undiagnosed Bipolar Disorder. b. United States Senate form to act on applicant’s behalf; letter from Senator X____, dated 13 November 2015; and letter from Senator X____, dated 3 June 2016, which states enclosed is a DD Form 149 for the applicant. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 6 January 1972. He was assigned to Fort Lewis, WA, and the Fort Sill, OK. b. He accepted non-judicial punishment under Article 15 on/for: * 18 September 1972, insubordinate conduct * 31 October 1972, absent without leave (AWOL) from 10 October 1972 to 11 October 1972 and on 24 October 1972; his punishment included reduction to private/E-2, restriction and extra duty for 30 days * 29 November 1972, broke restriction on 9 and 14 November 1972 * 24 December 1972, Insubordinate conduct and failure to obey an order c. On 13 February 1973, the applicant’s immediate commander recommended administrative elimination from the Army under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). d. The applicant’s service record is void of any parts of elimination packet. e. On 4 April 1973, Special Orders Number 94, assigned the applicant to the Separation Transfer Point US Army Field Artillery Center, Fort Sill, with a report date of 6 April 1973. The type of discharge directed was DD Form 258A (Undesirable Discharge Certificate), reason was unfitness (frequent incidents of a discreditable nature with civil or military authorities). f. The applicant was discharged on under other than honorable conditions, effective 6 April 1973 in the rank/grade of private/E-1. His DD Form 214 shows he was discharged under the provisions of chapter 13 for misconduct of AR 635-200 with an under other than honorable conditions characterization of service. This form also shows he completed 1 year, 3 months, and 1 day of active service. His awards included the National Defense Service Medal and Marksman Qualification Badge (Rifle). * Items 5a (Grade, Rate or Rank) PV1 and 5b (Pay Grade) E-1 * Item 6 (Date of Rank) – 4 April 1973 * 5. An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 1 September 2017, to determine if the applicant’s alleged medical condition(s) not considered during medical separation processing. a. The available records from the time of the applicant’s discharge provide insufficient evidence to corroborate the hypothesis that he acted as he acted because of undiagnosed Bipolar Disorder. The applicant was 19. The onset of Bipolar Disorder of Bipolar I Disorder is 18, the records did not conform to what one would expect, if the applicant had been having a full blown manic episode (normally lasting 2 weeks or less) or a major depressive episode at the time of his misconduct. Manic episodes tend to have dramatic features and nobody was reporting in the kind of grandiosity, reckless, or sleeplessness that are marks of manic episodes. In short, the evidence is insufficient to support the applicant’s claim that he had undiagnosed Bipolar I Disorder at the time of his misconduct. b. Does the available record reasonably support post-traumatic stress Disorder or another boardable behavioral health condition(s) existed at the time of the applicant’s military service? No. c. Did this condition(s) fail medical retention standards in accordance with (IAW) AR 40-501 (Medical Services – Standards of Medical Fitness), warranting a separation through medical channels? No. d. Were behavioral health (BH) conditions present at time of misconduct? It is uncertain, but the preponderance of evidence from the time of his misconduct is that he did not have a BH condition at that time. e. Were BH conditions mitigating for the misconduct? 5e. IAW Title 10 Section 1177 (signed into law 28 Oct 09), was a BH evaluation conducted prior to the admin separation of the applicant? No f. The applicant met medical retention standards in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. g. The applicant’s medical conditions were duly considered during medical separation processing. A review of the available documentation failed to find sufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. h. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. a. i. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 6. By regulation, Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 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 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 the short term of service completed prior to multiple UCMJ violations occurring and the medical advisory failing to find a nexus between the misconduct and a medical condition which would mitigate that misconduct, 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. 1535874 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 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 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 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 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 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 1. 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.