IN THE CASE OF: BOARD DATE: 25 January 2021 DOCKET NUMBER: AR20200002006 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 13 December 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 February 1987 * Army National Guard (ARNG) service medical records (24 pages) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 11 October 1991 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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 was injured in the line of duty and incapacitated while on active duty with Company A, 3rd Battalion, 126th Infantry Regiment. At the time, he was told he would be given a medical discharge. Decades later, he found out he was given a UOTHC discharge. He has supporting documents and witness statements that prove he was injured. He deserves his discharge upgraded from UOTHC to honorable. 3. The applicant enlisted in the Michigan ARNG (MIARNG) on 31 July 1986. He entered active duty on 30 October 1986, for the purpose of completing his initial active duty for training (IADT). He completed IADT, was awarded military occupational specialty (MOS) 11B (Infantryman), and was released from active duty (REFRAD) on 20 February 1987. Upon his REFRAD, he was returned to the control of his MIARNG unit of assignment. 4. The applicant provides copies of medical treatment records for the period he was in an active ARNG status. These documents show he was treated for the following: * on 23 May 1989, acute muscle strain and closed head trauma while on Annual Training * on 15 December 1989, chronic lumbosacral back strain (noted as a work related injury to bill the ARNG) * on 3 January 1990, continual low back pain 5. The available medical records show only one reference to head trauma but no diagnosis of or treatment for a traumatic brain injury. 6. The applicant’s record is void of the specific facts and circumstances surrounding his discharge from the ARNG and as a Reserve of the Army. However, the record does contain his NGB Form 22, which shows he discharged on 11 October 1991, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), Chapter 8, paragraph 8-26q, by reason of Acts or Patterns of Misconduct. This document shows his service was characterized as UOTHC. 7. 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 and the VA electronic medical record (JLV). The ARBA Medical Advisor made the following findings and recommendations: a. A Report of Injury shows that while at annual training in May 1989, he was diagnosed with an “acute muscle strain and closed head trauma.” The “Medical Treatment Rendered” consisted of the muscle relaxant “Parafon Forte, light duty, and no heavy lifting for remainder of Annual Training.” b. On 18 December 1989, he was seen at a civilian emergency department for low back pain. “Patient states that he was on military duty in May of 1989 wearing 150-pound back pack, sitting in a vehicle that hit a large bump. The force of the impact was enough to collapse the seat underneath him and he had sudden onset of back pain. He was evaluated by the military doctors at that time, was taken off of active duty and since then he states that he has been getting nothing but the "runaround" from the National Guard in regard to the back injury. He states that his back has hurt daily since.” c. The examination was unremarkable, he was diagnosed with chronic lumbosacral strain, and discharged with a prescription for Indocin, a non-steroidal anti-inflammatory medication. d. The applicant was seen by orthopedics on 9 January 1990 for persistent low back pain. After reviewing radiographs and completing a thorough examination, the surgeon concluded “There are no objective findings to explain his complaint of continuing low back pain.” e. The separation packet and other documentation addressing his discharge was not in the supporting documentation or iPERMS. f. There is no evidence the applicant had a lumbar injury or other medical condition which would have then contributed to his under other than honorable conditions discharge; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. g. Based on the information currently available, it is the opinion of the ARBA Medical Advisor that a discharge upgrade is not warranted. 9. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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, his record of service, and the reason for his separation. The Board considered the applicant's claim regarding being injured in the line of duty and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding him not having any medical conditions that may have mitigated the misconduct that led to his under other than honorable conditions discharge. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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, USC, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. National Guard Regulation 600-200 governs procedures for the administrative separation of enlisted personnel of the ARNG. a. Chapter 8 covers reasons for discharge and separation of enlisted personnel from the State ARNG and Reserve of the Army. The regulation defines misconduct by reason of one or more of the following: minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and conviction by civil authorities. b. Paragraph 8-26q provides for separation for acts or patterns of misconduct when the separation authority considers discharge under other than honorable conditions appropriate. c. A UOTHC discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002006 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1