IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007018 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Report of Separation from Active Duty) to show he was honorably discharged for medical reasons vice discharged with a general, under honorable conditions discharge.

2.  The applicant states he already had a mental issue while he was on active duty.  During that time, he was advised by his commander (CDR) to talk to the chaplain.  The chaplain advised him to see the CDR and his CDR recommended he be discharged under honorable conditions.  His mental state worsened and to this day he cannot relate to or confront people.

3.  The applicant provides his DD Form 214 and a statement of support.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 12 May 1975.  He completed basic training (BT) and on 15 July 1975 he was assigned for advanced individual training (AIT) to the 41st Company, 4th Battalion, Fort Rucker, AL.  

3.  On 19 August 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to his appointed place of duty.

4.  He did not complete his initial AIT and on 26 October 1975, he was assigned for AIT to Company H, 2nd Battalion, Aberdeen Proving Grounds, MD.

5.  On 6 February 1976, he received NJP under the provisions of Article 15, UCMJ, for failing to obey a lawful order.

6.  On 20 August 1976, he was assigned to the 1st Battalion, 70th Armor Regiment, Fort Carson.  On 13 October 1976, he and his unit did a permanent change of station (PCS) move to Germany.

7.  On 14 March 1977, he was reported as absent without leave (AWOL) from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.  

8.  On 12 April 1977, he was returned to military control at Fort Ord, CA, and assigned to the Personnel Confinement Facility (PCF), Fort Ord.

9.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 26 April 1977, for being AWOL from 14 March to 12 April 1977
* 27 April 1977, for failing to obey a lawful order

10.  He was subsequently assigned to the 542nd Maintenance Company, Fort Lewis, WA.  

11.  Between 27 May and 27 July 1977, he was frequently counseled by his senior noncommissioned officer (NCO) being late for work on several occasions and for absenting himself from his place of duty on several occasions.  He was notified that unless he took positive action to correct his deficiencies, he could be recommended for separation action under the appropriate Army Regulation.

12.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 11 August 1977, for failing to report to his appointed place of duty
* 13 October 1977, for being AWOL from 27 September to 5 October 1977
* 25 October 1977, for being disrespectful in language to an NCO

13.  On 31 October 1977, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-5a for unsuitability because of his apathetic attitude.  

14.  On 3 November 1977, he consulted with legal counsel and was advised of the basis for the separation action being initiated against him under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, the procedures and rights available to him, that if he was issued an undesirable discharge he may be ineligible for many or all benefits under both State and Federal laws, and that he may expect to encounter prejudice in civilian life.  He declined to submit a statement on his own behalf.

15.  His immediate commander subsequently initiated separation action against him, under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability.  His commander cited the numerous counseling he received and the NJP he received on three different occasions.  He stated rehabilitation should be waived due to his apathetic attitude, he would be a detriment to any unit he would be assigned.  

16.  On 24 November 1975, the separation authority approved his discharge for unsuitability and directed the issuance of a General Discharge Certificate.  On 30 November 1977, he was discharged accordingly.

17.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5b(3), for unsuitability (separation program designator JMJ), with an under honorable conditions characterization of service.  

18.  There is no evidence in his available record, and he did not provide any evidence, that shows while serving on active duty he was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to a medical evaluation board (MEB) or physical evaluation board (PEB).  There is no evidence that shows he every asked for or sought help for any mental/emotional issues he may have been dealing with while serving on active duty.

19.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

20.  The applicant provides a statement of support, dated 12 March 2014, from the Department of Veterans Affairs (VA), Martinez, CA, written in support of his VA claim for service-connected disability.  In the statement, a clinical social worker and a psychiatrist, in part, stated:

	a.  The applicant had been engaged with the VA behavioral health services since 2001 and treated for schizoaffective disorder.  He was first diagnosed with and treated for schizoaffective disorder while in a prison hospital between 1987 and 1994 (emphasis added).  His mood and psychotic symptoms had been chronic and pervasive with no periods of full remission since his first episode occurred in approximately 1976.  He was able to complete his first year in the service without incident and without any mental health issues.

	b.  In his second year of service, well after completing BT and AIT without problems, he had his first mood/psychotic episode and felt he "could not be around people."  He started getting Article 15s and getting into problems because he "just couldn’t do it" and became increasingly anxious and depressed.  While stationed at Fort Rucker, he started to hear other Soldiers talking about him and he started to withdraw by "going off and sitting in the bushes for hours to get away from people."

	c.  His performance evaluations started to degrade, along with his concentration and focus.  During his last months in the service, he told his company commander that he was having thoughts about suicide, experiencing command hallucinations, experiencing paranoia, and wanted to get out of the Army.  He was told to speak with the chaplain and he did.  Shortly thereafter, he was given a general, under honorable conditions discharge.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unsuitability and unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB's/PEB’s are 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

23.  Army Regulation 635-40 further states the 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/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.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

24.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous adverse counseling he received and the NJP he received on seven different occasions for being AWOL, failing to report on several occasions, absenting himself from his place of duty, and disobeying a lawful order.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case. 

3.  Although VA mental health officials stated he had his first mental break during his active duty service, they also stated he was diagnosed with schizoaffective disorder while in a prison hospital between 1987 and 1994.  In addition, they also stated he completed his first year of service without incident.  However, his record confirms just 3 months after his entry on active duty he received NJP for failure to report and less than 6 months later he received NJP for failure to obey a lawful order.

4.  His available record does not contain any evidence and he has not provided any evidence that shows he was ever treated for or diagnosed with any mental/medical disorder/condition while serving on active duty.

5.  Regardless, even if he had been experiencing mental/emotional stresses while serving on active duty, it doesn't excuse the adverse behavior he repeatedly engaged in.  Based on his record of indiscipline, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   x_______   ___
               CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20140007018





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007018



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1