ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170014768 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) characterization of service to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (VA) Rating Decision, dated 8 May 2014 FACTS: 1. The applicant did not file within the 3 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 the VA found him service connected for bipolar disorder, for residuals of meniscus repair of his left knee and for tinnitus. He requests his discharge characterization of service be upgraded to honorable from under honorable conditions based on the findings of bipolar disorder being service connected by the VA. He states the VA said his post-traumatic stress disorder (PTSD) was made worse by his service in the military. He states, "At the time of discharge, I was not aware of my mental illness and have since got help and being manic caused me trouble in the military because I would not sleep for days and have manic episodes because I was untreated." 3.  After a brief period in the delayed entry program, the applicant enlisted in the Regular Army on 26 October 2000. He competed training and was awarded a military occupational specialty. 4.  He had an extensive history of being counselled by his chain of command for the following infractions and violations of the Uniform Code of Military Justice (UCMJ): * failure to follow instructions on multiple occasions * failure to obey orders of superiors on multiple occasions * consistent failure to obey Army regulations, policies and the UCMJ * failure to go to his appointed place of duty on multiple occasions such as missing accountability formations to include a scheduled Army Physical Fitness Test * being absent without leave (AWOL) * leaving his appointed place of duty without permission * disrespectful in language and deportment toward superiors * communicating homicidal threats to peers and superiors * insubordinate conduct toward superiors * drunk and disorderly conduct on multiple occasions including at an airport 5.  He accepted multiple nonjudicial punishments under the provisions of Article 15, UCMJ for the following violations of the UCMJ: * on 28 February 2002, for drunk and disorderly conduct on or about 4 November 2001 at Fort Carson, Colorado * on 23 May 2002, for failure to go at the time prescribed to his appointed place of duty (accountability formations) on multiple occasions 6.  He underwent a physical examination in preparation for his separation. A DD Form 2808 (Report of Medical Examination) was prepared. The medical provider indicated the applicant had recurrent patella subluxation otherwise there were no physical defects or other diagnoses. As he had recurrent knee problems, he was referred to the orthopedic clinic for further evaluation. Other than his knee condition, he had no other recommendations or referrals for specialist examinations. The applicant was found qualified for continued service with no profile limitations or restrictions. 7.  On 29 May 2002, he underwent orthoscopic surgery for his knee condition at a military hospital on Fort Carson, Colorado. 8.  On 5 June 2002, he was explicitly counseled by a superior noncommissioned officer (NCO) for being disrespectful towards superiors, failure to obey orders of superiors, failure to obey regulations and insubordinate conduct toward superiors. As part of the counselling session and documented on DA Form 4856 (General Counseling Form) he was advised that his continued misconduct could lead to an initiation of actions to separate him from the Armed Forces under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He was advised he could receive an honorable, under honorable conditions or under other than honorable conditions characterization of service. Each characterization of service was defined for him. The applicant acknowledged receipt of the counseling form and indicated he disagreed with the information provided on the form. There is no evidence he provided a rebuttal statement to the infractions noted during the counseling session. 9.  As required by regulation, the applicant underwent a mental status evaluation by a clinical psychiatrist. During the evaluation the applicant’s behavior was normal, he was fully alert and fully oriented. His mood or affect was unremarkable with a clear thought process and normal thought content. His memory was good. He had the mental capacity to understand and participate in separation proceedings to include being mentally responsible. He concluded his evaluation by stating the applicant met the medical retention standards of Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) because he had no psychiatric disease or defect that would warrant processing through the disability evaluation system. 10.  In an undated letter the applicant's immediate commander notified him of his intent to initiate separation action against him for patterns of misconduct in accordance with Army Regulation 635-200, paragraph 14-12b. The factual reasons listed in the memorandum include but are not limited to the patterns of misconduct noted in the numerous counseling forms filed in this official military personnel file and noted above in this Record of Proceedings. Also noted were the two nonjudicial punishments for drunk and disorderly conduct and then repeated offenses of failure to be at his appointed place of duty. The commander ended the memorandum by stating that all rehabilitative attempts had been exhausted and he believed the applicant had no potential for useful service under conditions of full mobilization. 11.  The applicant acknowledged receipt of the commander's intent to separate him on 25 June 2002. He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He further acknowledged that he: * would not submit statements on his own behalf * understood he could expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions (General Discharge Certificate) were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded 12.  Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to patterns of misconduct in accordance with Army Regulation 635-200, paragraph 14-12b. His immediate commander recommended he receive an under honorable conditions characterization of service (General Discharge Certificate). He further acknowledged the applicant had undergone the required mental and medical evaluations with the medical providers stating he met the retention standards of Army Regulation 40-501, chapter 3 clearing him for administrative processing from the Army. 13.  On 21 June 2002, the separation action was found to be legally sufficient. 14.  On 28 June 2002, the intermediate commander recommended the applicant be separated prior to his expiration of his term of service with issuance of a General Discharge Certificate. 15.  On 28 June 2002, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200. He directed the applicant receive a service characterization of under honorable conditions and furnished a General Discharge Certificate. Separation orders were subsequently issued to the applicant. 16.  On 22 July 2002 his DD Form 214 confirms he was discharged for patterns of misconduct (Separation Code JKA), under the provisions of Army Regulation 635-200, paragraph 14-12b, with his service characterized as under honorable conditions (general). He completed 1 year, 8 months, and 23 days of net active service this period. 17.  There is no record the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 18.  In support of his application the applicant provided his VA rating decision letter dated 8 May 2014 showing he is service connected for bipolar disorder with anxiety (claimed originally as PTSD) was granted with an evaluation of 100 percent with an effective date of 27 April 2012. He further was considered service connected for left ankle osteoarthritis with residuals of fracture and osteomyelitis with an evaluation of 10 percent effective 27 December 2012. 19.  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 PTSD, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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. 20.  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 syndrome; 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. 21.  On 31 October 2017, the Army Review Boards Agency (ARBA) staff psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. Although he exhibited irritability, risk taking behaviors, impulsivity, and alcohol abuse, there is no indication he met criteria for bipolar disorder at the time or that his repeated infractions were related to another mental health condition. He was not diagnosed with bipolar disorder by the VA until 2013, which was following several years of treatment and evaluation for mood and substance abuse concerns. VA medical records also indicated a diagnosis of PTSD; however, this is related only to childhood physical abuse. There is no available evidence supporting a change to his narrative reason for separation or characterization of service. A copy of the complete medical advisory was provided to the Board for their review and consideration. 22.  The applicant was provided a copy of the advisory opinion on 1 November 2017 and given an opportunity to submit comments. He did not respond. 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 violations of the UCMJ, as well as the enclosed medical opinion finding no available medical evidence supporting a change to his narrative reason for separation or characterization of 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 3 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b. 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. 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "JKA" SPD code is the correct code for Soldiers separating under paragraph 14-12b of Army Regulation 635-200 by reason of patterns of misconduct. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20170014768 6 1