ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20170016361 APPLICANT REQUESTS: his Narrative Reason for Separation changed to medical discharge for post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 developed PTSD, mental disorder, and psychological issues while at basic training at Fort Knox, KY. He also states he never had PTSD or any mental issues before his service. He still suffers and has been receiving Supplemental Security Income (SSI) for 20 years. 3. A review of his service records shows: a. He enlisted in the Regular Army (RA) on 12 February 1982. b. He received a psychiatric evaluation on 9 March 1982, which identified that he had social/emotional maladjustment to the military. It also identified that he was mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceedings. c. On 16 March 1982, the immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He cited the specific reasons as: * the applicant had not made an effort to adjust to the military way of life or become a productive Soldier * * the applicant knew the standards to which he must perform but he had refused to put forth the effort required to do even the minimum amount * his chain of command has made every attempt to counsel and assist him, but you have shown an inability to improve your performance * he did not have the ability to be an effective Soldier. d. The applicant acknowledged receipt of the notification and consulted with legal counsel on 17 March 1982. He declined making a statement and also declined appearance before a board. e. On 16 March 1982, the applicant's company commander formally initiated separation action against the applicant under the provisions of AR 635-200, chapter 13 (Unsuitability – Apathy, defective attitude or inability to expend efforts constructively). The chain of command recommended approval of the separation action. f. On 31 March 1982, following a legal review for legal sufficiency, the separation authority approved the request for discharge for unsuitability and ordered his service be characterized as general, under honorable conditions. g. On 6 April 1982, he was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 13 (Unsuitability) with an under honorable conditions characterization of service. He completed 1 month and 25 days of active service. He was assigned Separation Code JMJ and the Narrative Reason for Separation as “Unsuitability – Apathy, defective attitude or inability to expend efforts constructively.” h. On 10 June 1983, he applied to the Army Discharge Review Board (ADRB) to have his characterization of service upgraded from under honorable conditions to an honorable discharge. The ADRB granted relief on 24 June 1983. i. On 24 June 1983, his original DD Form 214 was voided and he was reissued a new DD Form 214 reflecting his honorable characterization of service. The Separation Code and Narrative Reason for Separation remained the same. 4. On 26 March 2018, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The applicant met medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of 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. b. The applicant's medical conditions were duly considered during medical separation processing. a. c. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 5. On 3 April 2018, 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, AR 635-200, chapter 13, a member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsuitability (apathy). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the finding of the medical advisory stating it found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case and the applicant failing to respond to that finding, the Board concluded that there was insufficient evidence to show that an error or injustice was present which would warrant changing the narrative reason for the separation. The Board found that the narrative reason currently depicted on the applicant’s DD Form 214 accurately reflects the facts and circumstances leading to discharge. 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. 5/30/2019 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 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) 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 3. AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 4. AR 635-200 (Personnel Separations – Enlisted Personnel), sets policies, standards, and procedures to ensure the readiness and-competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. 5. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. 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 1. Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.