IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220010061 APPLICANT REQUESTS: in effect, physical disability separation or retirement in lieu of a general discharge under honorable conditions, due to unsuitability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Review Boards Agency, Congressional Liaison and Inquiries correspondence advising the applicant how to apply to this Board FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 has been mentally ill since 1983. He states he suffers from other mental health conditions to include manic depression and “schizophrenia- paranoia.” He needs help. He also states he sent his medical records in years ago. 3. On 25 October 1972, he enlisted in the Regular Army for 4 years, in pay grade E-1. 4. He left his unit at Fort Leonard Wood, MO in an absent without leave (AWOL) status on 19 March 1973. He was dropped from Army rolls on 21 March 1973, and he returned to military control at Fort Leonard Wood on 28 March 1973. 5. On 29 March 1973, he accepted nonjudicial punishment (NJP), for being absent without leave (AWOL) from 19 to 27 March 1973. His punishment consisted of a forfeiture of $50 pay and 14 days of extra duty and restriction. He did not appeal the punishment. 6. On 11 June 1973, he was assigned to Fort Belvoir, VA, with duties as a general construction machine operator. 7. On 12 September 1973, he accepted NJP, for disobeying a lawful order given by a staff sergeant to clean the latrine on 11 September 1973. His punishment consisted of 7 days of extra duty and 14 days of restriction. He did not appeal the punishment. 8. A Request for Psychiatric Evaluation, dated 17 September 1973, confirms the applicant had been counselled on three occasions within a 5-week period. He was counseled by his sergeant major (SGM), platoon sergeant, and the noncommissioned officers of the Construction Equipment Branch on almost a daily basis since his assignment to this unit, on or about 13 June 1973, but he failed to respond. Additionally, this request states: a. Personnel records indicated he had 11 months of active service and he was 18 years of age. He enlisted for 4 years and the unit of choice cash bonus option ($1,500). He failed to complete airborne training and he was denied the bonus. Therefore, he was trained as a “62J20” general construction machine operator. b. He received a company grade Article 15 while assigned to his present organization and his records included one previous Article 15 (company grade) for a 9-day period of AWOL. His character and efficiency ratings ranged from excellent to good and fair. c. He stated to the SGM that he did not like the Army, and he wanted out. His appearance was below average, and he refused to be motivated or put forth the necessary effort to become an average Soldier. He listened while being counselled, but kept his eyes diverted. He agreed to do better but did not follow through with effort. The SGM believed he should be eliminated from the service on the grounds of unsuitability or unfitness due to his negative attitude, stated dislike for the Army, failure to meet military standards of appearance, and job performance. 9. On 22 January 1974, he accepted NJP, for failing to go to his appointed place of duty on 17 January 1974, and for being AWOL from his unit from 18 to 22 January 1974. His punishment consisted of a forfeiture of $181.65 pay (suspended for 30 days), and 30 days of extra duty, and restriction. a. He appealed the punishment. He stated the punishment was harsh, the forfeiture was causing him a hardship, he had to take care of his family and creditors, and the SGM used profanity towards him for no reason. b. His accusations were investigated, and no misconduct was found on the part of the SGM. His forfeiture was suspended for 90 days. 10. A Certificate from Mental Hygiene Consultation Service, Fort Belvoir, VA, dated 30 January 1974 confirms a diagnosis of mixed character and personality disorder. Marked impairment for further military service. “LOD: No, EPTS [existed prior to service].” a. Further Findings: The above diagnosis comes under the category of character, behavior and personality disorders and disposition effected through administrative channels. He was determined to have no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels. b. His condition was due to deficiencies in emotional, personality and characterological development of such a degree to render him more of a liability than an asset for further military service. His lack of usefulness to the military was not amenable to hospitalization, treatment, disciplinary action, training or reclassification to another type of duty and further rehabilitative measures in a military setting would not be productive. c. He was mentally responsible, both to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings. d. Recommendations: He was cleared psychiatrically for any administrative action or disposition deemed appropriate by his command. The psychiatric recommendation was that he be administratively separated from the service. 11. On 8 February 1974, the applicant’s commander notified him that action was being initiated to discharge him under the provisions of chapter 13, AR 635-200 (Personnel Separations – Enlisted Personnel), due to [unsuitability]. He was advised of his rights. 12. On 12 February 1974, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of chapter 13, AR 635-200. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He also declined to submit statements in his own behalf. 13. On 12 February 1974, the applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service under the provisions of AR 635-200, paragraph 13-5b(2). He had been diagnosed as having a character and behavior disorder and he was cleared by the psychiatrist for administrative action. Discharge was being recommended because of habits and traits of character repeatedly manifested by him. He had shown no indications that he would ever become a satisfactory Soldier or that he would ever serve any useful purpose while in the service. No other disposition was considered appropriate. He had been counseled on the following dates: On 26 November 1973, 10 January 1974, 24 January 1974, and on 11 February 1974 by the commander. The commander recommended a waiver of rehabilitation requirements. 14. The applicant's intermediate commanders also recommended the applicant’s separation prior to the expiration of his term of service under the provisions of AR 635-200, paragraph 13-5b(2). 15. On 14 February 1974, the appropriate authority directed separation under the provisions of chapter 13, AR 635-200, due to unsuitability with a general discharge. 16. On 19 February 1974, he was discharged in pay grade E-2, due to unsuitability under the provisions of chapter 13, AR 635-200, he completed 1 year, 3 months, and 12 days of net active service this period. He was awarded the National Defense Service Medal. His DD Form 214 shows in: * Character of Service, Under Honorable Conditions [General] * Authority and Reason, AR 635-200, SPD “264” Unsuitability, Character and Behavior Disorders 17. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, prescribed policies and procedures of enlisted administrative separations. a. Chapter 13 established policies and procedures for the elimination of enlisted personnel who were determined to be unfit or unsuitable for continued military service. (1) Paragraph 13-5b (2) stated, as determined by medical authority, character and behavior disorders, and disorders of intelligence, were listed in Technical Bulletin, Medical, Number 15; such disorders could be used as a basis to separate Soldiers when chronic, unresponsive to rehabilitation, and interfered with the Soldier's ability to adequately perform duties. (2) Paragraph 13-5b(3) addressed Soldiers who displayed a lack of appropriate interest, a defective attitude, and/or the inability to expend effort constructively. b. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. 18. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 19. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 19 February 1974 under honorable conditions (general) discharge. He states: “I have been mentally ill since 1983. Mentally ill health; manic depress{ion}, schizophrenia – paranoia.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 25 October 1972 and was discharged on 19 February 1974 under the authority provided in Chapter 13 of AR 635-200, Personnel Separations – Enlisted Personnel (25 July 1973). The separation program number (SPN) 264 denotes “Unsuitability, character and behavioral disorders.” The DD 214 shows a total of 65 lost days under 10 USC 972 from three periods of absence without leave. d. Because of the period of service under consideration, there are no encounters in AHLTA and no documents in iPERMS. e. The applicant received two Article 15’s for two periods of absence without leave: 19-27 March 1973 and 18 -22 January 1974. He received a third Article in September 1973 for failure to obey a lawful order from a superior noncommissioned officer. f. A request for the applicant to undergo a mental health evaluation was made by his sergeant major on 17 September 1983: “PVT {Applicant} has been counselled by myself on three occasions within a five week period; counselled by his Platoon Sergeant and the NCO's of the Construction Equipment Branch on almost a daily basis since his assignment to this Department, O/A 13 June 1973, but has failed to respond … PVT {Applicant} has stated to me that he does not like the Army and wants out. His appearance is below average and he refuses to be motivated or put forth the necessary effort to become an average soldier. He listens while being counselled but keeps his eyes diverted. He will agree to do better but does not follow through with effort. I personally feel that the man should be eliminated from the service on the grounds of unsuitability or unfitness due to his negative attitude, stated dislike for the Army, failure to meet military standards of appearance, and job performance. g. A mental health evaluation by the Mental Hygiene Consultation Service at Dewitt Army Hospital, Fort Belvoir, Virginia, on 30 January 1974. The military psychiatrist wrote in part: “DIAGNOSIS: After psychiatric evaluation, the subject’s, diagnosis was determined to be: Mixed Character and Personality Disorder. Marked impairment for further military service. FURTHER FINDINGS: The above diagnosis comes under the category of Character, Behavioral and Personality Disorders and disposition is effected through administrative channels. The subject has no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels. RECOMMENDATIONS: The subject is cleared psychiatrically for any administrative action or disposition as deemed appropriate by his command. The psychiatric recommendation is that the subject be administratively separated from the service.” h. On 8 February 1974, the applicant’s company commander notified him of his recommendation that he be separated from the Army under paragraph 13-5b(2) of AR 635-200: Unsuitability. This recommendation was approved by the commanding general of the US Army Engineer Center and Fort Belvoir on 14 February 1974. i. JLV shows the applicant is not registered with the VA and there are no entries or diagnosed mental health condition. j. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations or other actions with led to his administrative separation; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. k. It is the opinion of the Agency Medical Advisor that an upgrade of his discharge is not warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations or other actions with led to his administrative separation; or that would have failed the medical retention standards and been a cause for referral to the DES prior to his discharge. During deliberation, the Board determined there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. The Board determined based on the preponderance of evidence within the applicant’s service record and the recommendation of the advising official, upgrade of his discharge is not warranted nor referral to DES. The Board denied relief. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. ? 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, 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 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. 2. Army Regulation 635-200, in effect at the time, prescribed policies and procedures of enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. Chapter 13 established policies and procedures for the elimination of enlisted personnel who were determined to be unfit or unsuitable for continued military service. (1) Paragraph 13-5b(2) stated, as determined by medical authority, character and behavior disorders, and disorders of intelligence, were listed in Technical Bulletin, Medical, Number 15; such disorders could be used as a basis to separate Soldiers when chronic, unresponsive to rehabilitation, and interfered with the Soldier's ability to adequately perform duties. (2) Paragraph 13-5b(3) addressed Soldiers who displayed a lack of appropriate interest, a defective attitude, and/or the inability to expend effort constructively. 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 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. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. a. 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 on the basis of 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. b. 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. 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 6. Army Regulation 635-40 establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command- referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one- time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. e. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 8. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010061 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1