IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140013450 


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 (Certificate of Release or Discharge from Active Duty) to reflect the narrative reason for separation as permanent disability retirement in lieu of administrative discharge for unsatisfactory performance.  Alternately, he requests an upgrade of his character of service from general under honorable conditions to honorable.

2.  The applicant states:

* he was wrongfully discharged from the Army after he became disabled in the line of duty when he developed a psychiatric disorder after witnessing a traumatic event
* after returning home early from a field maneuver, the traumatic event he experienced was witnessing his wife of 2 months engage in an extra-marital affair with a fellow Soldier on 23 April 1987
* he moved into the barracks on 24 April 1987
* on 25 April 1987, he was admitted to Womack Army Community Hospital, Fort Bragg, NC, for a psychological evaluation and he was released in May 1987  
* He participated in numerous follow-up psychiatric treatment and counseling sessions with the 82nd Airborne Division Mental Health Clinic, for which he has not been provided treatment records but has two medical appointment forms corroborating his appointments
* the medical records he provides with his application were withheld from him until June 2014, after numerous prior requests to the National Personnel Records Center (NPRC), and they were not considered during any board proceedings
* he displayed symptoms of major depression, anxiety, and post-traumatic stress disorder (PTSD), and these psychiatric disorders were the sole reason for his misconduct and directly led to his administrative elimination
* the persistence and recurrence of the symptoms he experienced clearly interfered with his duty performance
* he should have been referred to a medical evaluation board (MEB) and subsequently to a physical evaluation board (PEB) where he would have been found unfit and ultimately retired through medical channels
* Department of Defense (DOD) Instruction 1332.38 was issued on 10 April 2013 to align DOD guidance regarding physical disability evaluations with the current version of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)
* chronic adjustment disorder was made a potentially compensable physical disability requiring referral to an MEB when the Soldier exhibited persistent or recurring symptoms meeting the criteria in the current edition of the Diagnostic and Statistical Manual for Mental Disorders
* it would be in the interest of equity to retroactively apply these current standards regarding chronic adjustment disorder and MEB referral to his case
* his administrative discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance was not legally justified
* his alleged poor work performance was not adequately documented through substantiating counseling statements
* the counseling statements he received regarding domestic violence and nonsupport of his daughter should not be considered as they are not accurate
* on 22 September 1988, he filed for divorce and filed a restraining order against his wife
* on or about 1 October 1988, he paid $500 in child support to his wife in cash without asking her to sign a receipt and she took advantage of his naiveté, claiming he never paid it
* criminal charges were filed against him for assault with a deadly weapon when he attempted to exercise his visitation rights with his daughter
* his wife and her boyfriend refused to allow him to see his daughter, but he never broke into his wife's home or assaulted anyone; these accusations were fabricated to discredit him
* the doctor who performed his separation physical examination was not qualified to conduct his separation mental status evaluation and did not review his psychiatric treatment records prior to doing so, thus the mental status evaluation should be stricken from the record
* his commander's recommendation for elimination states his latest skill qualification test (SQT) score was 057; but his SQT score report from 17 March 1987 shows his score was 75
* his commander was selective in what he wrote on the recommendation for elimination and did not submit any of his general counseling forms or copies of his psychiatric treatment records with the discharge packet
* his commander made reference to an assault, leaving the scene of an accident, and breaking into and entering his wife's house in the applicant's elimination packet; but he was never convicted of any of these crimes in any court of law, thus he did not have the right to make such statements
* additionally, his commander cited missing training, having a bad attitude, and fighting with other Soldiers in the platoon; however, these statements are untrue and he was never counseled regarding these deficiencies
* he should have received a fully honorable character of service as a minimum based on the totality of his service record, which includes an Army Achievement Medal, Expert Infantryman Badge, promotions, completion of airborne and drivers training, and positive counseling statements
* he appealed to the Army Discharge Review Board (ADRB), in April 1992; but they did not have his medical documents at the time of the review since they were withheld from him, thus the ADRB denied his request

3.  The applicant provides:

* self-authored cover letter
* 38-page self-authored memorandum in support of his application
* enlistment documents
* assignment orders
* Individual Jump Record
* equipment operator's qualification record
* training certificates
* numerous medical records
* multiple Records of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)
* personnel action approving his promotion to specialist
* daughter's birth certificate
* Army Achievement Medal Certificate
* DA Forms 4856-R (General Counseling Form)
* court documents
* memorandum regarding the support of dependents
* medical appointment forms
* memorandum from Division Mental Health Service, 82nd Airborne Division
* physical examination documents
* Report of Mental Status Evaluation
* separation packet
* DD Form 214
* Individual Soldier's Report
* application to the ADRB
* ADRB decision
* correspondence with NPRC
* Personnel Qualification Record
* DOD Instruction 1332.38
* Army Directive 2013-12, dated 17 June 2013

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 3 December 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).

3.  Information taken from the applicant's Standard Form 558 (Emergency Care and Treatment), Fort Bragg Medical Department Activity (MEDDAC FBg) Form 1957 (Unit Contact Guide), and DA Form 4700 (Medical Record – Supplemental Medical Data), all dated 25 April 1987, show the applicant was taken to the emergency room on 25 April 1987 by his unit leaders.  They were concerned he might do harm to himself or his wife after he punched an individual at the mall earlier that day.  He was seeking help from the chaplain to deal with personal issues at the time.  Two days prior, he witnessed his wife engage in an extra-marital affair.


4.  From the emergency room, he was admitted to Womack Army Community Hospital for a mental health evaluation stemming from his inability to cope with his marital problems and drug usage, the problems he was discussing with the chaplain.  At the time of his emergency room admission, the applicant stated his last use of cocaine was 27 February 1987, but he denied further drug use.  He denied any drug use whatsoever upon later admission to the hospital.  Notes on the Standard Form 558 from that day further stated he accosted his wife and her boyfriend on numerous occasions and he threatened his wife with physical violence.  The applicant denied striking his wife.  The response on the MEDDAC FBg Form 1957 under "recent administrative/legal actions" stated the applicant received a summarized Article 15 for writing bad checks.  Reference to this summarized Article 15 is not found elsewhere in the applicant's records.

5.  The DA Form 3647 (Inpatient Treatment Record Cover Sheet) and DA Form 4700, both dated 28 April 1987, reflect that after medical assessment, he was diagnosed with adjustment disorder with mixed emotional features and marital problems on 28 April 1987.  He was discharged to his unit on the same day where he was returned to duty without any duty limitations, prescription medication, or issuance of a physical profile.  As part of his discharge plan, he was advised to schedule a follow-up appointment with the troop medical clinic for advice on coping skills, stress/anger management, and marriage counseling.

6.  On 1 June 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to go at the prescribed time to his appointed place of duty on 14 May 1987 and for breaking restriction on the same date.

7.  A DA Form 4856-R, dated 16 September 1988, shows he was formally counseled regarding a temporary restraining order placed against him, advising him to make no contact with his wife.  A copy of this restraining order is not in the applicant's available records and he has not provided a copy for review.  He did, however, provide a copy of a court order from 22 September 1988, advising his wife to avoid threatening, harassing, molesting, interfering with, or bothering him.

8.  The applicant also provided a court order, dated 28 September 1988, granting his wife temporary custody and control of their child subject to the visitation rights of the applicant, ordering both parties to restrain from harassing each other, and ordering the applicant to pay child support.  On 28 October 1988, the applicant's wife filed a motion pertaining to the applicant's contempt of the aforementioned court order.  It states he did not pay his required child support for the month of October 1988, he entered his wife's house through a rear entrance and attempted to flee with their daughter, threatened to kill himself, and threatened 
his wife and the lives of everyone around her.  The subsequent court order resulting from this motion is not in his available records for review and he has not provided a copy.

9.  A DA Form 4856-R, dated 4 November 1988, shows he was formally counseled for the period 19 September 1988 through 29 October 1988.  It stated the counselor did not have any complaints with the applicant's performance during the field problems and the applicant is technically able to perform his job; but he was occasionally slow to respond to directives.  The counselor admitted to being lenient regarding the applicant's performance, mistakes, and attitudes due to the personal problems he was going through.  The counselor advised the applicant was promotable to the rank of sergeant; but he would not be recommended for promotion until his personal problems were resolved.

10.  On 10 November 1988, he received NJP under the provisions of Article 15 of the UCMJ for failing to make the 4-hour recall formation on 5 November 1988.  A DA Form 4856-R, dated 23 November 1988, shows he was issued a letter of reprimand for failure to respond to the alert and his inability to be contacted by unit leadership.

11.  On 21 November 1988, the State of North Carolina issued a notice of delinquency to the applicant for failure to pay child support in the amount of $242.00.

12.  On 2 December 1988, he received his monthly counseling annotated on a DA Form 4856-R.  The counselor stated he had no complaints with the applicant's performance and his assistance during the inspection was greatly appreciated; but he was again counseled that his personal problems needed to be resolved.  He needed to work on his personal appearance, room appearance, quit doing just enough to get by, and he was advised that he was eligible for promotion; but he would not be recommended until he solved his personal problems.

13.  A DA Form 4856-R, dated 5 December 1988, reveals he was again counseled for his inability to control his personal problems.  The counselor advised the Soldier to see the statement attached to the document; but it was not included with the counseling form, so its contents are unknown.  The summary of the counseling portion does advise the applicant that his behavior is unsatisfactory and action may be initiated to separate him from the Army for unsatisfactory performance or misconduct should it continue.



14.  On 8 December 1988, the applicant received a memorandum from his company commander notifying him of his requirement to provide family support.  He was advised that appropriate action might be taken against him should he continue to be in noncompliance with the legal requirements to provide support.

15.  A letter from the division social worker at the Division Mental Health Service, 82nd Airborne Division, dated 8 December 1988, shows the applicant was seen for severe marital and personal problems at the Division Mental Health Service since 28 May 1987.  The letter states the applicant's problems at the time the letter was written were the same as those he was experiencing 1 1/2 years prior (namely marital and personal problems).  The letter goes on to recommend the applicant's administrative discharge due to the chronic nature of his personal problems and his inability to find solutions to them, regardless of command intervention and the services provided by the social worker.

16.  His medical examination for the purpose of administrative discharge under the provisions of Army Regulation 635-200, chapter 13, dated 15 December 1988, shows the applicant was in good health and he was not taking any medication.  The applicant checked "Yes" next to the block for depression or excessive worry and next to the block indicating whether he had been treated for a mental condition.

17.  His Report of Mental Status Evaluation, dated 15 December 1988, rated him as having normal behavior, being fully alert, being fully oriented, displaying unremarkable mood or affect, thinking clearly with normal thought content, having good memory, and having the mental capacity to understand and participate in the proceedings.  He was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

18.  A DA Form 2495 (Disposition Form), dated 21 December 1988 and signed by the applicant's company commander, stated the applicant had numerous problems associated with his personal life that adversely impacted his military career.  The applicant was counseled on numerous occasions regarding his personal life, incidents involving civilian police authorities, and failure to pay proper child support to no avail.  The applicant was described as being a detriment to the unit and having a disruptive presence, thus his discharge from the Army was deemed in his best interest.

19.  On 27 December 1988, he was advised by legal counsel of the basis for his contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He elected not to submit a statement in his own behalf and further acknowledged he understood that:

* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge
* he could apply to the ADRB or the ABCMR for an upgrade – however, an act of consideration did not mean his discharge would be upgraded

20.  On 4 January 1989, his immediate commander notified him of his intent to initiate separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  His commander cited the applicant's substandard performance as a Soldier, NJP under the UCMJ, personal problems, and incidents with civilian authorities as being detrimental to the effectiveness and morale of the unit.  He did not believe the applicant would develop enough to become a satisfactory Soldier and requested a waiver of rehabilitative transfer.  The applicant acknowledged receipt of the notification on 4 January 1989.

21.  On 5 January 1989, the separation authority approved the applicant's discharge for unsatisfactory performance under the provisions of Army Regulation 635-200 and directed the issuance of a General Discharge Certificate.  He was discharged accordingly on 18 January 1989.  His DD Form 214 shows he completed 3 years, 1 month, and 16 days of active service.

22.  On 20 April 1992, the applicant petitioned the ADRB for an upgrade of his discharge.  The applicant argued that his family and marital problems isolated him and impaired his ability to serve.  He stated his record of promotions showed he was a good Soldier and he served 37 months out of a 48-month enlistment.  He made no reference to medical issues.  On 8 December 1993, the ADRB denied his appeal, concluding that his discharge was both proper and equitable.

23.  His available service records do not indicate he was ever treated for or diagnosed with depression or PTSD nor do they indicate he became disabled in the line of duty as he claimed.  The available records also do not indicate he:

* was issued a permanent physical profile
* suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service
* was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES)
* was diagnosed with a condition that failed retention standards and/or was unfitting

24.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

	b.  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.

25.  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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES 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).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected




	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 or not 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 retirement payments and have access to all other benefits afforded to military retirees.

	d.  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/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 a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

26.  Army Regulation 635-40 establishes the Army PDES 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/her 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.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

27.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

	a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the required standards.

	b.  Paragraph 3-36 (Adjustment Disorders) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to reflect the narrative reason for separation as permanent disability retirement in lieu of administrative discharge for unsatisfactory performance or, alternately, an upgrade of his character of service from general under honorable conditions to honorable was carefully considered and was found to be without merit.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by two counts of documented NJP for failing to be at his appointed place of duty at the appointed time and for failing to make the 4-hour recall formation, which the applicant does not dispute.  Additionally, his records contain an official notice of delinquency for failing to pay child support issued by the State of North Carolina along with multiple documents referencing other domestic disputes and difficulties, the details of which he does dispute.

3.  His administrative separation was accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  There is no indication the doctor signing the mental status evaluation was not fully qualified to do so, as the applicant claims.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, his administrative discharge for unsatisfactory performance was appropriate.

4.  The totality of his records show the quality of his service generally did not meet the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization aside from honorable would be clearly inappropriate.  Therefore, there is no basis to change his character of service to honorable.

5.  The applicant's medical records show he was briefly hospitalized for a mental health evaluation following marital difficulties and was diagnosed at that time with an adjustment disorder with mixed emotional features and marital problems.  Per Army Regulation 40-501, in effect at the time, situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

6.  There is no evidence showing the applicant had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry into the PDES.  Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition.  At the time of the applicant's discharge, there was no evidence of an unfitting condition.  Therefore, entry into the PDES was not warranted.

7.  Additionally, the applicant was seen by the division social worker at the Division Mental Health Service the month prior to his discharge and in the social worker's professional opinion the applicant's problems at the time of discharge were the same as those from 1 1/2 years prior, namely marital and personal problems.  The social worker specifically recommended the applicant's administrative discharge due to chronic personal problems and his inability to find solutions to them.  He did not recommend entry into the PDES for a medical condition.  Therefore, there is no basis to change the narrative reason for separation to reflect permanent disability retirement in lieu of administrative discharge for unsatisfactory performance.

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 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)                                         AR20140013450



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013450



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1