BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160005086 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: 12 December 2017 DOCKET NUMBER: AR20160005086 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: 12 December 2017 DOCKET NUMBER: AR20160005086 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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 2. The applicant states he attended technical drafting classes at Texas Tech for about one year, but the university has no record of his student status. He then traveled to Germany and stayed there about one year before he returned home. a. He states he then enlisted in the U.S. Army and he held three different military occupational specialties (MOSs) during his military service. He was responsible for the Arms Room; however, he was not promoted to the proper rank for the position (i.e., sergeant/grade E-5) and not paid the wage he was due. b. He hurt his back while a member of a weightlifting team and he was hospitalized. He felt like a failure, fell into depression, and got into trouble for using drugs. He adds that he had intended to reenlist in the U.S. Army for a $50,000 bonus, but he was only offered a $35,000 bonus. c. He acknowledges that he had problems with authority during his military service. He states that his company commander and first sergeant made his time in the U.S. Army a "living hell." On one occasion, the commander showed him a Ku Klux Klan hood. On another occasion when they were traveling in a jeep, the company commander called him a racial slur and the applicant jumped out of the jeep. Several black men who were nearby heard the remark and chased the commander's jeep up a hill. He states that he got into trouble for the incident. He also states the first sergeant tried to beat him up near the unit's Arms Room. He adds, "After that, I did just enough to get out!" d. He states the commander and first sergeant made his military experience very humiliating and he received unfair punishment. As an example, he received a speeding ticket when he was returning from school. The sheriff called his first sergeant and he told the sheriff to keep the applicant locked up for 2 weeks. He adds that he was discouraged, discharged UOTHC, and he lost his college fund. e. He concludes by stating that he has had back surgery and he is a cancer survivor, but he now has heart disease and is in need of help. 3. The applicant provides a self-authored statement (summarized above) and copies of his post-service medical records. 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), in the rank/grade of private first class (PFC)/E-3, on 17 April 1985 for a period of 3 years. a. He was assigned to Fort Sill, OK, and attended – * Basic Combat Training from 22 April 1985 to 20 June 1985 * Field Artillery Surveyor (MOS 82C) course from 21 June to 18 July 1985; he was declared an academic failure * LANCE Crewmember, Multiple Launch Rocket System (MLRS) course from 19 July to 23 September 1985; he was awarded MOS 15D b. He was reassigned on Fort Sill, OK, to the following duty positions/units – * LANCE Missile Crewmember (MOS 15D1O), Headquarters and Headquarters Battery, 2nd Battalion, 37th Field Artillery, effective 24 September 1985 * Armorer (MOS 76Y1O), Service Battery, 2nd Battalion, 37th Field Artillery, from 24 September 1985 to 11 November 1986 3. Twelve DA Forms 4856-R (General Counseling Form) show a noncommissioned officer (NCO), who held the rank/grade of staff sergeant (SSG)/E-6, counseled the applicant for various acts of indiscipline, including – * misuse of another Soldier's identification card (21 October 1985) * failure to have a proper haircut (22 October 1985) * giving the keys to the Supply Room to an unauthorized Soldier (15 April 1986) * having a .45 caliber pistol missing from the Arms Room (16 April 1986) * unsatisfactory room inspections on five occasions (May–June 1986) * failure to attend morning formation (13 June and 2 July 1986) * failure to return to work (26 June 1986) 4. Orders issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, pertaining to the applicant show – * Orders 22-509, dated 22 January 1986, awarded him Secondary MOS (SMOS) 76Y00, effective 13 December 1985 (appropriate skill level would be awarded upon completion of 90 days on-the-job training) * Orders 97-538, dated 7 April 1986, awarded him SMOS 76Y1O effective 31 March 1986 5. A DA Form 5180-R (Urinalysis Custody and Report Record), dated 7 July 1986, shows the applicant's urine specimen (taken on 12 June 1986) tested positive for THC (marijuana). 6. On 15 July 1986, the applicant's Secret security clearance was suspended based on the positive urinalysis test result. 7. On 18 July 1986, the applicant accepted nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between 3 June and 12 June 1986 in violation of Article 112a, UCMJ. His punishment included reduction to private (PV1)/pay grade E-1, forfeiture of $300.00 pay per month for 2 months, restriction for 45 days, and extra duty for 45 days. He did not appeal the NJP. 8. On 28 July 1986, the battalion commander approved a bar to reenlistment against the applicant. 9. A DA Form 3822-R (Report of Mental Status Evaluation), dated 3 September 1986, shows the applicant was examined by a mental health professional and psychiatrically cleared for any administrative action deemed appropriate by his command. 10. On 9 September 1986, the applicant underwent a separation medical examination. The applicant reported, "I'm in good health." A medical doctor examined the applicant and found him qualified for administrative separation. 11. On 9 October 1986, the applicant was notified by his commander that action was being initiated to separate him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct based on commission of a serious offense. a. The reasons for the proposed action were the applicant was identified through a urinalysis test conducted on 12 June 1986 for use of marijuana for which he received NJP. Additionally, the applicant failed to execute his NJP of extra duty on several occasions, he received a letter of indebtedness, he had been counseled on numerous occasions for various acts of indiscipline, he disobeyed the orders of NCOs, and he willfully damaged his barracks room door by violently swinging it open. b. The commander advised the applicant that he was recommending he receive an UOTHC Discharge Certificate. He also advised him of his right to – * consult with counsel * be represented by counsel * submit statements and/or documents in his own behalf * waive any of these rights 12. On 15 October 1986, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He waived consideration of his case by a board of officers and also waived personal appearance before a board of officers. He indicated that he would not submit statements in his own behalf. b. He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event an UOTHC discharge or a general, under honorable conditions discharge was issued to him. c. The applicant and counsel each placed their signature on the document. 13. On 22 October 1986, the company commander recommended approval of the applicant's discharge, recommended waiver of rehabilitative transfer, and forwarded the separation action through the chain of command. 14. The battalion and brigade commanders recommended approval of the applicant's discharge with an UOTHC Discharge Certificate. 15. The separation authority approved waiver of rehabilitative transfer, approved the recommendation for separation of the applicant, and directed discharge UP AR 635-200, chapter 14, section III, paragraph 14-12c, with an UOTHC Discharge Certificate. 16. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 17 April 1985 and he was discharged on 7 November 1986 UP AR 635-200, paragraph 14-12c, based on misconduct (commission of a serious offense) with service characterized as UOTHC. He completed 1 year, 6 months, and 21 days of total active service. 17. A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 18. In support of his application the applicant provides the following documents: a. Covenant Health, Fort Sanders Regional Medical Center, Knoxville, TN, Neurosurgery Operative Note, that shows the applicant was diagnosed with L5-S1 herniated nucleus pulposus; he underwent a procedure for left L5-S1 hemilaminotomy and discectomy with microscopic dissection technique on 28 January 2010; and there were no complications. b. University of Tennessee, Medical Center, Knoxville, TN, letter, dated 10 December 2013, that shows the applicant has a diagnosis of laryngeal carcinoma, he was previously treated with chemotherapy and concurrent radiation, and he has no evidence of disease progression or recurrence. c. Social Security Administration letter, dated 14 July 2017, that shows the applicant was granted disability benefits for depression, bipolar and related orders and anxiety and obsessive-compulsive disorders (both with an onset date of 30 October 1995). 19. In the processing of this case, an advisory opinion was obtained from the medical staff, Army Review Boards Agency (ARBA), dated 23 August 2017. a. The ARBA senior medical advisor noted the applicant's service treatment medical records and military personnel records were available for review. He also noted the electronic military medical record (AHLTA) was not available (the system was not implemented at the time of the applicant's service). b. The medical advisor's review was based on available medical records, including those provided by the applicant. He provided a detailed review of the applicant's medical encounters, including his entrance physical examination (pollen mild allergy; sinusitis - mild); clinic visits for acute onset right lower quadrant pain (14 August 1985), contact to positive gonococcus patient (24 June 1986), and femora-patellar joint syndrome right knee on 20 October 1986 (existed prior to service); physical therapy for patellofemoral syndrome right knee (21 October 1986); community mental health services visit (29 August 1986); mental status evaluation (3 September 1986); and separation physical examination (9 September 1986). c. A limited review of his Veterans Administration (VA) medical records through the Joint Legacy Viewer revealed no VA listed diagnoses. "Message –this patient is not known to the VA. The applicant is not VA service connected." d. He provided a summary of the medical documents the applicant provided with his application (previously summarized in this Record of Proceedings). e. The medical advisor found the applicant met medical retention standards for history of abdominal pain, history of exposure to venereal disease (negative culture; treated empirically), history of sinusitis/allergies, and existed prior to service history of right knee pain (i.e., in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), 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. He opined, "Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army." f. He concluded that the applicant's medical conditions were duly considered during his medical separation processing. He found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 20. On 25 August 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity (14 days) to submit comments or a rebuttal. There is no evidence that the applicant provided a response. REFERENCES: 1. AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 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 or her office, grade, rank, or rating. Separation by reason of disability requires processing through Disability Evaluations System. 2. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3, 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. Chapter 3, 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. c. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. DISCUSSION: 1. The applicant contends, in effect, that his UOTHC discharge should be upgraded because he was not promoted to the rank/grade commensurate with his position and paid the wage he was due; his company commander verbally abused him, his first sergeant physically abused him, and they both treated him unfairly; and he sustained a debilitating back injury during his military service. 2. The applicant entered active duty in the RA on 17 April 1985 in the rank of PFC (E-3). a. He failed to complete the Field Artillery Surveyor course for MOS 82C. b. He completed the LANCE Missile MLRS course and was awarded MOS 15D. c. On 24 September 1985, he was assigned to duty in MOS 76Y as the unit's Armorer. He was awarded SMOS 76Y1O on 31 March 1986. d. During the period October 1985 to July 1986 he was counseled on at least 12 occasions for various acts of indiscipline. This counseling was done by an NCO (SSG/E-6); not his first sergeant or company commander. e. He tested positive for marijuana use (in June 1986), for which he received NJP that included reduction to PV1 (E-1). As a result, his Secret security clearance was suspended. f. On 28 July 1986, the battalion commander approved a bar to reenlistment against the applicant. 3. Based on the foregoing, it is not easily understood why the applicant believes he should have been promoted to SGT (E-5) based on his assignment to duty in MOS 76Y. His record of service from the time he began to perform duty in MOS 76Y shows numerous acts of indiscipline and a serious offense for which he was reduced from PFC (E-3) to PV1 (E-1) and he forfeited $300.00 pay per month for 2 months. The evidence of record does not support the applicant's contention that he should have been promoted to grade E-5 and/or paid any additional pay. 4. The applicant's contentions pertaining to his company commander and first sergeant are acknowledged. However, the applicant offered no documentary evidence in support of his contentions. Moreover, the evidence of record documenting his history of misconduct argues against his contention of unfair treatment by the company commander and/or first sergeant. 5. The evidence of record shows the applicant was cleared by a mental health professional for administrative separation. It is noted that the applicant acknowledged he was in good health at the time of his separation physical examination. More importantly, the examining physician found him qualified for administrative separation. Moreover, the ARBA senior medical advisor concluded that the applicant's medical conditions were duly considered during his separation processing and he found no evidence of a medical disability or condition which would support a change to the character or reason for the applicant's discharge. 6. The applicant's administrative discharge UP AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense (for wrongfully using a controlled substance) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the type of discharge directed, authority, and narrative reason shown on the applicant's DD Form 214 are appropriate and correct. 7. The evidence of record shows a discharge UOTHC is normally considered appropriate for personnel separated for misconduct based on commission of a serious offense. a. As outlined above, the applicant had a long history of acts of indiscipline and he committed a serious offense during his relatively short period of military service. He completed about half of his 3-year active duty service obligation and he was reduced from PFC (E-3) to PV1 (E-1). b. The entire chain of command recommended the applicant be issued an UOTHC discharge based on his misconduct and the separation authority approved the recommendation to separate the applicant with an UOTHC character of service. 8. The evidence of record fails to show that the applicant's service during the period under review met the standards of acceptable conduct and performance of duty for Army personnel or that it was satisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005086 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005086 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2