SAMR-RB 27 September 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160001571 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 5 September 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 29 January 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Milhl? . {!,, &u1------ Encl FRANCINE C. BLACKMON Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001571 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001571 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. BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001571 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 an upgrade of his under other than honorable conditions (UOTHC) characterization of service to an honorable discharge or an honorable discharge based on his medical conditions. 2. The applicant states he was an excellent Soldier until an accident during his military service rendered him unable to perform his military duties. His discharge with an under other than honorable conditions characterization of service was premature because he was not provided due process in the form of a Physical Evaluation Board (PEB) for his medical conditions. 3. The applicant provides: * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * 4-page Standard Form 502 (Narrative Summary (Clinical Resume)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim) 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 (RA) on 30 December 1987. He completed training and he was awarded military occupational specialty 11B (Infantryman). 3. On 31 October 1988, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing a box of cologne, the property of the Army and Air Force Exchange System. 4. On 1 March 1989, he was convicted by a summary court-martial of disobeying a superior noncommissioned officer. The court sentenced him to 14 days hard labor without confinement. 5. DA Form 3947 shows that on 30 June 1989, the applicant was referred to a MEB, due to severe intractable back pain. The MEB found him unfit and referred him to a PEB. The form also shows that on 11 July 1989, the findings and recommendation of the MEB were approved. 6. On 17 July 1989, summary court-martial charges were preferred against the applicant for: * one specification of failing to go at the time prescribed to his appointed place of duty on 25 May 1989 * one specification of being disrespectful in language toward a noncommissioned officer or 29 May 1989 * one specification of being derelict in the performance of his duties on 9 June 1989 7. On 27 July 1989, an additional summary court-martial charge was preferred against the applicant for offering violence against a superior commissioned officer on 23 July 1989, by saying "If I ever see that man walking down the street when I get out, I am going to cap that m_____ f_____." 9. The applicant's battalion commander rendered an endorsement recommending the applicant's trial by a special court-martial, empowered to adjudge a bad conduct discharge. 10. On 28 July 1989, the applicant consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. a. Following consultation with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. b. In his request for discharge, he acknowledged he understood he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person. He admitted guilt to the charges against him or of lesser included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He acknowledged understanding that, if the discharge request was approved he could be discharged under conditions other than honorable and furnished a Discharge Certificate UOTHC, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration. He also understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge. The applicant acknowledged understanding that he may submit any statement he desires in his own behalf, which would accompany his request for discharge, but he elected not to submit statements in his own behalf. 12. On 1 August 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed issuance of an UOTHC discharge and reduction to the lowest enlisted grade. 13. On 4 August 1989, the applicant was discharged with an UOTHC character of service. 12. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by a court-martial with an other than honorable conditions discharge. He completed 1 year, 7 months and 5 days of active service during this period with no lost time. 14. On 23 February 1995, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 15. On 14 June 1995, the ABCMR reviewed his discharge and determined it was proper and equitable. The ABCMR denied his petition for an upgrade of his discharge. 16. On 19 December 2016, an advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor, who stated: a. The applicant did not meet medical retention standards for chronic pain secondary to chronic L5, S1 sprain of fibrous non-union of previous intra-articularis fracture, right L5, S1 nerve root impingement by bulging disc and by sclerotic changes in the pars intra-articularis and the resulting radiculopathy IAW Chapter 3, Army Regulation 40-501 (Standards of Medical 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 considered during medical separation processing. Based on the information available for review at the time, the applicant had mitigating medical conditions and likely a behavioral health condition for the offenses, which led to his separation from the Army. A review of the available documentation found some evidence of a medical disability or condition, which would support a change to the character or reason for the discharge in this case. 17. The applicant was provided a copy of the advisory opinion for review and comment. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate. a. 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 b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-40, in effect at the time, establishes the Army physical disability evaluation system (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 office, grade, rank, or rating. a. Chapter 2 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 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. Chapter 4, section I (Referral for Disability Processing) states the following: (1) The case of a member charged with an offense, or is under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless the investigation ends without charges, the officer exercising proper court-martial jurisdiction dismisses the charge(s), or The officer exercising proper court-martial jurisdiction refers the charge(s) for trial to a court-martial that cannot adjudge such a sentence. (2) An enlisted member may not be referred for physical disability processing when action has been started that may result in his administrative separation with a under other than honorable conditions discharge. (3) The MEB will recommend referral of members who do not meet medical retention standards to a PEB. The Medical Treatment Facility commander will notify the unit commander of the planned referral of the member to a PEB and obtain from him whether any adverse personnel action is pending against the member. When referral of a case file to a PEB has been approved, the member will be counseled. If further action is not barred, the case file with commander’s statement will then be forwarded to the serving PEB. 3. Army Regulation 40-501, in effect at the time, governs medical fitness standards for retention and separation, including retirement. It gives the various defects, which may render a member unfit for further military service. DISCUSSION: 1. The evidence of record shows that the applicant was referred to a PEB by the MEB, however before his case could be forwarded to the PEB for further disability processing court-martial charges were preferred against him. Based on regulatory guidance, the applicant’s case did not qualify for referral to the PEB because he was charged with an offense, which could have resulted in his dismissal or punitive discharge. 2. The applicant's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. His service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001571 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001571 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2