IN THE CASE OF: BOARD DATE: 3 February 2022 DOCKET NUMBER: AR20210012179 APPLICANT REQUESTS: * correction of her records to show she was discharged due to a medical disability * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 4-page personal statement * 3 third-party statements * 200 pages of medical records (approximately) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 she should have received a medical discharge. They labeled her as an alcoholic since basic training and by the time she was sexually assaulted, she was a full blown bipolar. 3. The applicant enlisted in the Regular Army on 18 July 1978. 4. The applicant's records show that on 1 December 1978, she departed absent without leave (AWOL) and remained AWOL until she surrendered to civilian authorities on 30 April 1980. 5. On 2 May 1980, court-martial charges were preferred against the applicant for her AWOL offense. 6. On 8 May 1980, she consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, in lieu of trial by court-martial, due to charges being preferred against her under the Uniform Code of Military Justice which authorized the imposition of a bad conduct or dishonorable discharge. 7. She acknowledged in her request that she was making the request of her own free will and she had not been subjected to any coercion whatsoever by any person. She also acknowledged she had been advised of the implications that were attached to it and that by submitting the request for discharge, she was admitting guilt of the charge against her which authorized the imposition of a bad conduct or dishonorable discharge. She also acknowledged she understood she could be issued an under other than honorable conditions discharge. 8. On 22 May 1980, the separation authority approved her request for discharge and directed the issuance of an under other than honorable conditions discharge. On 14 June 1980, she was discharged accordingly. 9. The applicant provided: a. A 4-page personal statement in which she explains the reason(s) for joining the military and the negative experiences she endured during and after her military service. The complete statement was provided to the Board for their review and consideration. b. Three third-party statements, provided by members of her family, that attest to the applicant's positive attitude prior to joining the military and her drastic changes in demeanor which began after her military service. The complete statements were provided to the Board for their review and consideration. 10. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. a. A review of her hardcopy military medical record indicates she was seen on 26 July 1978 due to pain in her neck radiating down her back. The applicant stated she received a whiplash injury and was receiving physical therapy prior to active duty. She was referred to physical therapy. On 31 July 1978, she was seen in behavioral health. She stated she was unable to handle the mental and physical strain of basic training. No psychiatric disease was found and she was returned to duty. On 16 August 1878, she was enrolled in Army Drug and Alcohol Prevention and Control Program due to improper use of cannabis and habitual excessive drinking. On 28 August 1978, she was seen for leg and back pain. She was seen by physical therapy on 8 and 13 September 1978. X-rays and bone scan on 13 September 1978 were negative. She was cleared to go to Advanced Individual Training (AIT). b. On 8 October 1978, the applicant reported abdominal cramping and pain in her lower extremities and pelvis area. The provider noted the complaints were “vague in nature and inconsistent upon interviewing.” The provider wrote “hostile and complaining about medical care given while at basic training – states if she finds out that basic training caused leg pain she is going to sue the government. Apparently no back problems prior to auto accident in May 1978. Letter from private physician while hospitalized in New York listed discharge diagnoses as cervical myositis, low back syndrome, severe dysmenorrhea, and anxiety neuroses.” Applicant stated she was on crutches during basic training but not when she went home on leave. The provider noted the odor of alcohol on applicant’s breath. Applicant “became more hostile threatening to sue the government and Army and will go to a civilian MD” and stated “They will find something wrong with me.” c. On 8 May 1980, the applicant was seen for a mental status evaluation and met retention standards in accordance with AR 40-501 (Standards of Medical Fitness). On 9 May 1980, she completed a separation physical and denied any depression or excessive worry and nervous trouble of any sort. She met retention standards. A review of her service record indicates she reported symptoms of “nervous trouble of any sort” on her accession physical but checked no for any injury. d. Her administrative separation paperwork indicates the applicant stated she went AWOL due to her dissatisfaction with the Army. She stated that from her entry in the Army she was not happy with her choice and while in AIT she was trying to get a discharge. e. A review of her civilian medical record dated 12 April 2007 mentioned a diagnosis of Bipolar Disorder. A review of the Department of Veterans Affairs' Joint Legacy Viewer indicates the applicant requested housing assistance from the Department of Veterans Affairs in October 2021. She has not been evaluated or treated in the Department of Veterans Affairs system. She does not have a service connected disability rating. f. There is documentation to support a behavioral health diagnosis at the time of her discharge. She met retention standards at the time of her discharge, thus medical retirement is not warranted. Avoidant behavior is associated with victims of sexual assault and mitigates her AWOL behavior. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, and the reason for her separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA Medical Advisor. 3. A majority of the Board concurred with the conclusion of the ARBA Medical Advisor that, while the evidence shows no basis for discharge or separation due to disability, the evidence does support the presence of a behavioral health condition that mitigates her period of AWOL. Based on a preponderance of evidence, a majority of the Board determined the applicant's character of service should be changed to under honorable conditions (general). 4. The member in the minority noted the applicant very specifically requested correction of her record to show she received a "medical discharge." Because the evidence shows she met retention standards prior to her discharge, the member in the minority determined there is no basis for the relief the applicant seeks. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her DD Form 214 to show her character of service as under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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, United States Code, 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. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 3. 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 disability evaluation system (DES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any 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. 4. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Army Regulation 635-40 establishes the DES 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. The regulation in effect at time states in: a. Paragraph 2-1, a mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. b. Paragraph 4-3, an enlisted member may not be referred for physical disability processing when action has been started that may result in administrative separation with an under other than honorable conditions character of service unless the commander exercising general court-martial jurisdiction over the member determines that: (1) The disability is the cause, or substantial contributing cause, for the misconduct that might result in a discharge under other than honorable conditions. (2) Other circumstances warrant disability processing instead of other administrative disposition. 6. Army Regulation 15-185 (ABCMR) provides in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012179 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1