IN THE CASE OF: BOARD DATE: 15 March 2016 DOCKET NUMBER: AR20150001796 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 IN THE CASE OF: BOARD DATE: 15 March 2016 DOCKET NUMBER: AR20150001796 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 to amend the decision of the ABCMR set forth in Docket Number AC93-07857, dated 14 July 1993. __________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. IN THE CASE OF: BOARD DATE: 15 March 2016 DOCKET NUMBER: AR20150001796 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: a. Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC93-07857, dated 14 July 1993. Specifically, he requests his discharge be changed from an under honorable conditions (general) discharge (GD) to a medical discharge. b. Reconsideration of the previous ABCMR decisions promulgated in Docket Numbers AC93-07857, AR20040008876, AR20060011010, and AR20070012232, dated 14 July 1993, 14 July 2005, 22 March 2007, and 31 December 2007, respectively. With respect to these docket numbers, he requests an upgrade of the reentry (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty), from "4" to "1." c. A personal appearance before the Board, if warranted. 2. The applicant states, in effect, at the time of his legal issues, he went through a medical evaluation board (MEB) that found him unfit for further military service. However, he was denied consideration by a physical evaluation board (PEB), which would have afforded him a possible medical discharge in 1991, thereby allowing him access to benefits. His bad conduct discharge (BCD) was upgraded to a GD in 1997, allowing him to apply for disability benefits. 3. The applicant provides approximately 270 pages of medical documentation from civilian, military and Department of Veterans Affairs (VA) sources. 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's request for a change to his RE code from "4" to "1" was previously reconsidered by separate Boards, as promulgated in ABCMR Docket numbers AR20040008876, AR20060011010, and AR20070012232, dated 14 July 2005, 22 March 2007, and 31 December 2007, respectively. While denying the applicant's request for a change in his RE code, these Records of Proceedings also advised the applicant in writing that any future requests would not be considered; however, he had the option to seek relief in a court of appropriate jurisdiction. Accordingly, this part of his request will not be further considered or discussed in this Record of Proceedings. 3. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC93-07857, on 14 July 1993. 4. The applicant provides approximately 270 pages of medical documentation. It appears much of this information was not previously considered by the Board in its consideration of the applicant's original case; therefore, this new evidence will now be considered. 5. The applicant enlisted in the Regular Army on 17 May 1990. He was awarded military occupational specialty 71M (Chaplain Assistant) following the completion of his initial entry training. He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 158th Aviation Regiment, 6th Cavalry Brigade at Fort Hood, Texas. 6. His duty status was changed from "Present for Duty" to "Confined [by] Military Authorities," effective 12 November 1990. This duty status change resulted from court-martial charges that were preferred against him. 7. An MEB was convened at Darnall Army Community Hospital, Fort Hood, Texas on or about 11 December 1990. a. The MEB NARSUM indicates his chief complaint was pain in both knees, which resulted in the issuance of a permanent physical profile and his referral to an MEB. b. The MEB concluded his condition rendered him unfit and his profile limitations would restrict him from full and active duty in the service. The MEB referred him to a PEB, based on the diagnosis of chronic bilateral knee pain - patellofemoral pain syndrome. No other conditions were listed on the DA Form 3947 (Medical Evaluation Board Proceedings). c. The MEB findings and recommendation were approved on 14 December 1990. The applicant agreed with the MEB's findings and recommendation on 16 January 1991. He indicated that he did not desire to continue on active duty. 8. A review of his record reveals no PEB proceedings. 9. Neither the specific court-martial charges preferred against him nor his complete separation packet are available for review; however, according to ABCMR Docket Number AC93-07857, he was convicted by court-martial of willful disobedience to a captain (chaplain). Specifically, he failed to report to the motor pool and to prepare the section vehicle for deployment on 12 November 1990. 10. The U.S. Army Court of Military Review affirmed the court-martial findings and sentence on 7 May 1991. 11. Special Court-Martial Order Number 41, issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, CA, on 27 September 1991, shows the applicant was convicted and sentenced to a bad conduct discharge (BCD), confinement for 4 months, and forfeiture of $482 pay per month for 4 months. The sentence was adjudged on 5 December 1990 and affirmed on 16 January 1991. 12. The applicant was discharged on 29 October 1991, under the provisions of Army Regulation 635-200 Personnel Separations Enlisted Personnel), chapter 3, section IV, as a result of a court-martial with a BCD. His DD Form 214 confirms he completed 1 year, 2 months, and 4 days of net active service. 13. He applied to the ABCMR for an upgrade of his discharge, citing the unfairness of being sent to a court-martial rather than being processed for a medical discharge. The ABCMR denied his request on 14 July 1993. 14. He applied to the Army Discharge Review Board (ADRB) in 1997 for an upgrade of his discharge. He was granted a personal appearance board before the ADRB Travel Panel in Los Angeles, CA, on 5 May 1997. The ADRB determined that while his discharge was proper, clemency was warranted in his case and voted unanimously to upgrade his BCD to a GD. The ADRB voted not to change the narrative reason or authority for his discharge. 15. He provides military, civilian, and VA medical documents that outline his knee and medical issues. Most of these documents are dated in the years 2013 and 2014, excluding his military records that cover his period of service. He also provides VA Rating Decisions that awarded him a disability rating. REFERENCES: 1. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. 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. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that a member who is charged with an offense for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge, refers it for trial to a court-martial that cannot adjudge such a sentence, or suspends the sentence in the case of a Soldier already under sentence, the case may be referred for disability processing. 3. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army Physical Disability Evaluation System. DISCUSSION: 1. The applicant's request that his discharge be changed from an under honorable conditions (general) discharge (GD) to a medical discharge was carefully considered. 2. In accordance with applicable Army regulations, a Soldier may not be referred for, or continue, physical disability processing when charged with an offense under the Uniform Code of Military Justice (UCMJ) that could result in dismissal or punitive discharge. 3. The applicant was sentenced to confinement and a BCD by a special court-martial. Absent evidence to the contrary, there is a presumption of government regularity in the processing of the applicant's separation processing. 4. Even though his BCD was later upgraded to a GD based on clemency, there was no change to the authority or reason for separation; therefore there is no basis for disability processing. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001796 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001796 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2