ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 January 2019 DOCKET NUMBER: AR20160012257 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect medical discharge and upgrade of his character of service to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * wife’s letter * Standard Form 88 (Report of Medical Examination), dated 12 December 1975 * DA Form 3647-1 (Clinical Record Cover Sheet), dated 23 January 1976 * Standard Form 600 (Chronological Record of Medical Care), dated 23 February 1976 * DA Form 3647-1, dated 23 March 1976 * Standard Form 507 (Clinical Record), dated 26 September 1977 * Standard Form 88 (Report of Medical Examination), dated 3 November 1977 * DD Form 214 * Decree of Dissolution of Marriage * seven letters of recommendation/reference * office/outpatient medical visit notes * rebuttal * Social Security Administration letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. In 1976 when stationed in Fort Lewis, WA, he was at the Yakima Firing Range when he fell off an M60 tank and landed on his back. He immediately reported his fall to Sergeant W____ E____, who was in the field with him and went to the medical station to have the medic look at his back. There was a place about the size of a 50 cent piece that was red and swollen on his lumbar spine, in the L3-L5 area. b. He went absent without leave (AWOL) from Fort Lewis, WA, in July 1977, when he found out that his wife, from whom he is now divorced, had sex with at least two men who were both stationed at Fort Lewis. He and his wife separated as a result, but about 1 month later she told him she was pregnant and he decided to try to work things out for the sake of the child. He then filed for divorce when he found out the child was not his. One of the men she admitted to having sex with was Sergeant W____ E____, and he had to work with him in the unit he was attached to, which made it very difficult for him to continue to work at Fort Lewis. c. He was then sent to Fort Riley, KS, to the 2nd Battalion, Retraining Brigade. While there he had problems with his back and right leg that made it difficult to do the training. He was seen by a medic and given physical therapy. A back evaluation was done at the time. He eventually had back surgery in 1994 on L4-L5 area at the Willamette McKenzie Hospital in Springfield, OR. d. He asked for his medical records from the Army several times over the last 20 years and finally received them in June 2016. According to these records there was evidence of hearing loss from when he took a medical examination in December 1975 and on the medical examination in November 1977. When he was stationed at Fort Knox, KY, he was hospitalized and was told he had pneumonia, but that is not what is in the records he received when discharged from the hospital. He went back to the hospital 2 days later and was diagnosed with acute respiratory disease according to the records he recently received. He has had respiratory problems ever since then and now has been diagnosed with chronic obstructive pulmonary disease. e. In 1980 he married his current wife and has been married to her for 35 years. She had three children when he met and married her and raised them as his own. He has always been able to have some type of job over the years, up until the past 5 years because it is difficult for him to do manual labor due to medical problems. He has sent letters from former employers that show what type of person/worker he is. f. He did not get the proper representation or counseling for his problems while he was in the Army and doesn’t think he received the type of discharge he should have, which is a medical discharge. 3. A Standard Form 88, dated 12 December 1975, shows it was determined during his enlistment physical examination he had mild bilateral pes planus of the feet, but was qualified for enlistment. 4. He enlisted in the Regular Army on 6 January 1976. 5. A DA Form 3647-1, dated 23 January 1976, shows he was diagnosed with infectious mononucleosis and strep pharyngitis and was admitted to General Medicine Services from 20 -23 January 1976. After 3 days of bed rest his disposition was changed to return to duty on 23 January 1976 and his physical profile was unchanged. The applicant hand-wrote on the form that he was told by doctors he was being treated for pneumonia and that every day they did blood draws and gave them an intramuscular shot and pills. 6. A Standard Form 600, dated 23 February 1976, shows he was seen at the Fort Knox, KY Combined Troop Medical Clinic for knee pain. The physical findings show he claimed to have injured his right knee playing football 3 years earlier. The impression was Chondromalacia (or runner’s knee) and the treatment was to continue with heat and the straight leg raising home program. 7. A DA Form 3647-1, dated 23 March 1976, shows he had 1 day bed rest at General Medicine Services and was diagnosed with acute respiratory disease on 29 February 1976. On 29 February 1976, his disposition was changed to return to duty and his physical profile remained unchanged. 8. He was arraigned, tried, and found guilty by special court-martial on 15 September 1977, of absenting himself from his unit without authority from on or about 21 July 1977 through 18 August 1977. He was sentenced to reduction to the rank/grade of private/E-1, forfeiture of $25.0.00 per month for 2 months, and to be confined at hard labor for 2 months. 9. A Standard Form 507, dated 26 September 1977, shows he was seen at Ireland Army Hospital for a back evaluation and physical therapy. His complaint was a dull ache in the thoracolumbar region from the right hip to joint. He stated he fell off a tank approximately 1 year ago and complained of pain at that time. His active range of motion was within normal limits. He was assessed as having a tight low back. 10. His complete discharge packet is not in his available records for review. 11. Correctional Progress Notes, dated 31 October 1977, show the applicant was informed by his immediate commander of his pending discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct. He acknowledged he was informed of his right to consult with counsel, present his case before a board of officers, submit statements in his own behalf, and be represented at a hearing by counsel for representation. 12. A Disposition Form, signed by his commander on 31 October 1977, likewise shows he was recommending the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13 for misconduct/shirking. 13. A Standard Form 88, dated 3 November 1977, completed for the purpose of discharge, shows he was qualified for separation and his clinical evaluation was normal. 14. A Standard Form 93 (Report of Medial History), dated 3 November 1977, also completed for the purpose of discharge, shows the applicant did not check any boxes. The doctor annotated on the bottom of the form the applicant was essentially in good health. 15. A DA Form 3822-R (Report of Mental Status Evaluation), dated 3 November 1977, shows he had the mental capacity to understand and participate in board proceedings and that he met retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 16. His available service records do not show: * he was issued a permanent physical profile rating * he 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 * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 17. He was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance on 6 January 1976, after 1 year, 7 months, and 21 days net active service and his service was characterized as under other than honorable conditions. 18. He and his first wife divorced on 1 October 1980. 19. His current wife of 35 years provided a letter wherein she states the applicant has been a loving and faithful husband and wonderful father over the years. He has always provided for their family doing whatever was necessary to keep a roof over their heads. 20. He provided seven letters of recommendation and reference from past employers, all of whom attested to the applicant’s excellent work ethic, dependability, and expertise. 21. He provided office/outpatient medical visit notes from the Pulmonary and Allergy Clinic, dated 16 July 2015. It shows his primary diagnosis was obstructive sleep apnea, originally diagnosed on 12 June 2015 and his course was currently improving. He was also diagnosed with other nonspecific abnormal findings of lung field, shortness of breath, fatty liver due to alcohol and chronic obstructive pulmonary disease. 22. The Army Review Boards Agency senior medical advisor provided an advisory opinion on 27 April 2018. It states: a. All available records were reviewed. A review of his electronic medical record revealed no records. His paper service treatment record and official military personnel records were reviewed, to include numerous clinic notes, aid station visits, and emergency room visits. b. Limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer listed no problems and no VA medical records were found. The applicant does not currently have a VA service-connected disability. c. The applicant met medical retention standards for history of infectious mononucleosis, strep pharyngitis, acute respiratory disease, possible pneumonia (no positive x-ray reports or notes), chest pain, abdominal pain, shoulder pain, knee pain, foot pain, hearing , dental caries, pes planus mild (existed prior to service) and any other physical, medical, dental or behavioral health conditions in accordance with Army Regulation 40-501, chapter 3. d. A review of the available documentation 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. 23. The applicant was provided a copy of the advisory opinion and in sent a rebuttal response on 10 May 2018. He states: a. His lung problems started while he was in the service and have gotten progressively worse over the years. His back problems began when he fell off the tank at Yakima firing range and has gotten progressively worse over the years. b. He requested all his military records several times and finally only received partial records. It is apparent from the advisory opinion that the Board had access to all of his records. It has taken him 20 years to obtain the few records he did get, which makes it difficult for him to submit a proper application. c. As far as his ex-wife goes, he was giving her money, she was just trying to get him in trouble with the military as well as trying to get money from the Army. She has falsified records to obtain child support for a child that was not his and it is his understanding she was arrested for this. d. With his rebuttal he provided a letter from the Social Security Administration, dated 26 June 2017, which shows beginning December 2016, his full monthly Social Security disability benefit before any deductions was $1,445.10. 24. Army Regulation 635-200, chapter 13, contains policy and outlines 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. 25. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board recognizes the applicant’s medical issues. Evidence of records though do not show permanent physical profile rating, or how he suffered from a medical condition that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service, he was not diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System, and he was not diagnosed with a condition that failed retention standards and/or was unfitting which would lead to a medical discharge. The applicant further did not check any boxes on his Standard Form 93 (Report of Medial History), dated 3 November 1977 thus leading the doctor to annotate the applicant was essentially in good health. In addition, the Senior Army Review Boards Agency senior medical advisor states a review of the available documentation 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. For these reasons the Board denies request for medical discharge. 2. In addition, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and no error or injustice was found in the process. With respect to the policy of equity, injustice, or clemency determinations, the Board considered the letter from his spouse and the seven letters of recommendation attesting to the applicant’s behalf. Consequently, the greater weight of the evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200. Consequently, the applicant has not demonstrated by a preponderance of evidence that an honorable discharge is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. SIGNATURE: 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and physical evaluation board (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 either are 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 retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a 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 or 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. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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. 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. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160012257 8 1