ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE:  28 January 2019

                   DOCKET NUMBER:  AR20160013664


APPLICANT REQUESTS: 

* an upgrade of his under other than honorable conditions (undesirable) discharge to an honorable or general, under honorable conditions discharge
* a medical discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 47 (Record of Induction)
* DA Form 20 (Enlisted Qualification Record)
* Medical Documents
* two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* two DA Forms 2627 (Summarized Record of Proceedings Under Article 15, UCMJ)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* two Self-Authored Statements 
* Character References

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.  he lost his right thumb in the service and was not considered for a medical discharge.

	b.  he was unable to cope with his family issues because he was far from home and his wife was distraught.  

3.  In his self-authored statement he explained the reasons for the misconduct that led to his discharge:

	a.  he joined the Army when he was 18 years old so he could help his single mother and defend his country.

	b.  he was absent without leave (AWOL) because he wanted to check on his pregnant wife.  His wife called him, she became hysterical, and she wanted him to come to see her.  Although he was AWOL, he always returned to his post and surrendered himself.  

	c.  he needed help, but he did not see a counselor or anyone concerning his family problems.  

	d.  he realized that he should not have acted so foolishly, but he was young and too immature to understand the gravity of his actions.

	e.  he received several Article 15s and he spent 6 months in the stockade.

	f.  he lost half of his thumb while working in the bakery.  He believes the Army started processing his discharge when he lost the use of his right thumb.  

	g.  he has not been in trouble with the law and has become an asset to his community and the people around him.  He has coached high school and college football over the last 50 years and he has had a positive impact on the students, parents, and faculty.  

4.  In another self-authored statement he discussed the reasons his discharge should be upgraded:

	a.  his discharge is improper and/or inequitable and should be recharacterized to honorable or general, under honorable conditions because he should be considered under the "Whole Man Concept."

	b.  he explained the "Whole Man Concept" based on the Army Discharge Review Board (ADRB) Standard Operating Procedures (SOP), Annex F-1, paragraph 3.A, 44 Federal Regulation 25,070 (27 April 1979).  He referenced three ADRB cases.  

	c.  it has been documented that young or immature service members cannot exercise the same judgement as older peers and youthful errors can be at least a partial mitigating factor.

	d.  the Board should consider the "person" to determine whether the individual was capable of comprehending the actions leading to separation and the impact of unfavorable separation on his future life.  

	e.  the Board should recognize that certain offenses such as AWOL may be caused by a service member's genuine compulsion to be with his family in time of need.  In his case, it was his ailing grandmother who raised him.  These mitigating factors would clearly be considered relevant at the court-martial.  Since the chain of command was sometimes unresponsive, the service member might have put family before service.

	f.  his discharge is improper and/or inequitable because certain offenses, such as AWOL, which may occur because of a service member's compulsion to be with his/her family member in time of need.  In his case, it was his pregnant wife.  These personal problems can sometimes become so difficult that "normal" behavior patterns are disrupted.  These mitigating factors would clearly be considered relevant at the court-martial: (1) applicant was 18 years old at time of enlistment; and (2) applicant was newly married and wife was expecting child.  

5.  The applicant was born on 17 May 1946 and was inducted into the Army of the United States on 21 September 1964 at the age of 18.  

6.  On various dates between November 1964 and June 1965, he accepted nonjudicial punishment under Article 15, UCMJ on four separate occasions for the following offenses:

* failing to repair to a company formation
* failing to go at the time prescribed to his appointed place of duty
* being absent from his organization without proper authority

7.  On 24 March 1965, he was convicted by a special court-martial for five specifications of being AWOL from 11 to 18 January 1965; 22 to 24 January 1965; 9 to 18 February 1965; 24 to 25 February 1965; and 6 to 8 March 1965.  He had an additional charge of being AWOL from 20 to 21 March 1965.  

8.  On 3 September 1965, he was convicted by a special court-martial for three specifications of being AWOL from 30 June to 2 July 1965; from 2 to 12 July 1965; and from 16 to 18 July 1965.  

9.  On 10 January 1966, a medical provider at the Mental Hygiene Consultation Division evaluated him and prepared a certificate noting the following:

	a.  the applicant stated he continued to go AWOL because, "I just get tired of being around here, I get the urge to go so I go.  I knew I would be punished but that didn't bother me."  He also stated, "I was tired of going."  

	b.  the applicant was married a few months after entering the service and he felt his marriage and the Army were conflicting; therefore, he did not want to stay in the service.  He stated, "I can't make it in the Army with a wife and family on privates pay.  If I have to stay in the service I will keep going AWOL."

	c.  the applicant stated that he did not complete most of his duty assignments because, "I don't give a d___ about them.  When I came in the Army I thought I would play football."  

	d.  there are no disqualifying mental or physical defects sufficient to warrant discharge under the provisions of Army Regulation 635-40A (Physical Evaluation for Retention, or Separation) or Army Regulation 635-40B.  The applicant was and is mentally responsible, both to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.  

	e.  a recommendation that the applicant be administratively separated from the service under the appropriate regulation deemed advisable in his case.  

10.  On an unknown date, the unit commander recommended that proceedings be initiated under the provisions of Army Regulation 635-208 (Discharge Unfitness) to discharge the applicant from the military service for unfitness.  

11.  Army Regulation 635-208 provided that members who displayed undesirable habits and traits were subject to separation for unfitness.  The separation authority could grant a general, under honorable conditions discharge or honorable discharge if warranted by the member's overall record of service.  The issuance of an undesirable discharge was normally considered appropriate for members separated under these provisions.

12.  In a 14 January 1966 statement, his First Sergeant indicated that he had endeavored to help the applicant by counseling, job rotation, and encouragement to mix with others through company sports activities.  However, this failed to induce him in his attitude of belligerence, cooperation, and resentment towards military service.  The applicant had many opportunities to salvage himself but failed to progress in any manner.  

13.  On 17 January 1966, he acknowledged that he had been counseled and advised by his unit commander of the basis of the separation action.  He declined military legal counsel, waived a hearing of his case by a board of officers, and elected not to submit a statement in his behalf.  

14.  On 21 January 1966, the unit commander recommended the applicant be ordered to appear before an appropriate board of officers to determine whether he should be separated from the service for unfitness under the provisions of Army Regulation 
635-208 (Discharge for Unfitness).  The unit commander indicated that attempts had been made to rehabilitate the applicant, including numerous duty assignments and personal consultation.  

15.  The intermediate commander recommended approval of separation action under Army Regulation 635-208 with an undesirable discharge.

16. The separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-208 by reason of unfitness with issuance of an undesirable discharge.

17.  He underwent a physical examination on 16 February 1966 and was found qualified for separation with a physical profile of 111111.  His Standard Form 88 (Report of Medical Examination) shows the entry "Part of First Digit RT [right] Thumb Missing."  

18.  On 23 February 1966, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness.  He had completed 10 months and 7 days of active military service 

19.  His DD Form 214 shows he had 206 days of lost time during the periods:

* 11 to 18 January 1965 and 22 to 24 January 1965
* 2 to 4 February 1965; 9 to 18 February 1965; and 24 to 25 February 1965
* 6 to 8 March 1965 and 20 to 21 March 1965
* 26 to 31 May 1965
* 4 to 6 June 1965
* 30 June to 12 July 1965
* 16 July to 14 December 1965
* 21 to 21 December 1965

20.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

21.  He provided character references from former students who he coached, a fellow coach, and a family member who described him as being: caring, loyal, helpful, encouraging, a mentor, a role model, efficient, honest, reliable, conscientious, courteous, and supportive.

22.  On 17 July 2018, this Board received an advisory opinion from the Army Review Boards Agency (ARBA) Senior Medical Advisor.  The advisory official discussed the applicant's disciplinary history, including nonjudicial punishments, convictions by special court-martial, periods of AWOL, and confinement and concluded:

	a.  The applicant met medical retention standards for partial amputation of distal phalanx of right thumb, tinea versicolor (skin fungal infection), EPTS [existed prior to service] bilateral pes planus, and all other medical, physical, dental and/or behavioral conditions IAW [in accordance with] Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40.

	b.  the applicant's medical conditions were duty considered during medical separation processing.

	c.  a review of the available documentation found no [emphasis] evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case.

		(1) Based on the information available for review at the time, the applicant did not [emphasis] have mitigating medical or behavioral health condition(s) for the offenses that led to his separation from the Army.

		(2) there was no clear indication for disability evaluation system (DES) processing in this case.  He did not clearly reach a MRDP [medical retention decision point] at the time of separation.

23.  A copy of the advisory opinion was forwarded to the applicant to allow him to comment; he did not respond.  

24.  The applicant provided a self-authored statement and letters of reference and a medical advisory opinion was provided in this case.  The Board should consider this evidence in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:
After reviewing the application and all supporting evidence, to include all statements from the applicant, the Board determined that based upon the multiple AWOL events, they didn’t see any justification for a change in characterization of service and that no error or injustice was present.  Additionally, his injury to the thumb met retention standards, so medical separation was not 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.


											 ___________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.




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 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.  Army Regulation 635-208 (Discharge Unfitness), in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service.  The regulation provided that members who displayed undesirable habits and traits were subject to separation for unfitness.  While the separation authority could grant a general, under honorable conditions discharge or honorable discharge, if warranted by the member's overall record of service, the issuance of an undesirable discharge was normally considered appropriate for members separated under these provisions.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a states 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

4.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

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 type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards 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)	 AR20160013664


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