ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20170014458 APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD) and change of his narrative reason for separation to show he was separated for medical reasons. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Standard Form 180 (Request Pertaining to Military Records) * DD Form 214 (Report of Separation from Active Service) for the period 11 August 1975 to 11 March 1977 (U.S. Coast Guard (USCG) service) * Department of Veterans Affairs (VA) Certificate of Eligibility for Loan Guaranty Benefits * 36 pages of VA medical records, printed on 29 November 2017 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 (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: * he was declared unstable, schizoaffective, bipolar, and on social security disability as ruled by a Federal judge while on active duty * he should have been medically discharged * he has been in many hospitals and will be on medication until death * about 95 percent of his life is taken over by tactile hallucinations which makes it impossible to function around people; he was suffering from this when he left the military * he was placed under hypnosis before any action by the military and held at Fort Benning, GA, and punished before any trial or discharge * it has taken him countless years to be able to remember much * he was an is an ill person who should have his discharge changed to honorable or to general under honorable conditions * he earned the Army Achievement Medal and the Air Assault Badge, so he knows he was a pretty good Soldier at some point 3. The applicant served honorably in the USCG from 11 August 1975 to 11 March 1977. He enlisted in the Regular Army on 11 February 1987. 4. The applicant's DA Form 2-1 (Personnel Qualification Record-Part II) shows he was reassigned from Fort Campbell, KY to the Medical Holding Company, Dwight D. Eisenhower Army Medical Center, Fort Gordon, GA, on 18 August 1989, in a patient status. 5. The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 7 December 1989 for failing to go at the time prescribed to his appointed place of duty. 6. The applicant's separation proceedings are not available for review. However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 21 February 1992, under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct discharge. The DD Form 214 also confirms the applicant's contention that he was awarded the Army Achievement Medal and the Air Assault Badge. 7. On 25 January 2018, the Army Review Boards Agency clinical psychologist/medical advisor provided an advisory opinion. The advisory found that based on a thorough review of available medical records, there is insufficient evidence to determine if a behavioral health condition existed during the time of separation. The applicant's military records are void of a basis for separation and there is a lack of medical information, to include reasons for being on medical hold, dates for diagnosis of schizoaffective disorder, bipolar type, and any mental health evaluations during his period service. In summary, there is no evidence to support a change to the applicant's reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. The applicant was provided a copy of the advisory opinion on 29 January 2018 and given an opportunity to submit comments. A third-party responded on behalf of the applicant and provided a two-page statement advocating for the upgrade of the applicant's discharge and for the change of the reason for separation to a medical discharge, based on the applicant's past and present medical diagnoses. In addition to the two-page statement, a DD Form 214 for the period 11 August 1975 to 11 March 1977 (applicant's USCG service), a VA Certificate of Eligibility for Loan Guaranty Benefits, and 36 pages VA medical records were provided. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 6/21/2019 X CHAIRPERSON Signed by 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Paragraph 3-7a provides that 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. c. Paragraph 3-7b provides that 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. 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 post-traumatic stress disorder; 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 to 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, states in paragraph 4-1 (Soldiers charged with an offense) the case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence 6. Army Regulation 15-185 (ABCMR) states in paragraph 2-2 the ABCMR will decide cases on the evidence of record. It is not an investigative body. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.