ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 September 2019 DOCKET NUMBER: AR20160014346 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Board for Correction of Military Records (ABCMR) Docket Number AR1999023798 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR1999023798 on 24 February 2000. 2. The applicant states he is requesting an upgrade of his discharge because his company commander showed prejudice towards him. He was sent to confinement; however, he had a profile for his back, knee, and both ankles. When the confinement officer noticed he was under a profile, he called and told the commander they were unable to accept him due to the profile. The commander became upset and began processing the paperwork to discharge him. He was denied his physical examination prior to his discharge. He feels his discharge was inequitable because of the one isolate incident with no other adverse action. He believes he should have been offered some assistance when his mother died as they were very close. He was looking to receive some counseling at the time to help him deal with her death. He is receiving social security benefits for the same injuries from the Army. 3. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 June 1979. Upon completion of training, he was awarded military occupational specialty 55B (Ammunition Specialist). b. On 9 January 1980, he accepted nonjudicial punishment (NJP) for carelessly discharging a shot gun in the guard tower. c. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was: * promoted to pay grade E-4 on 1 November 1980 * reduced to pay grade E-3 on 13 January 1981 d. He again accepted NJP on/for: * 19 January 1981 – failing to go to his appointed place of duty * 10 February 1981 – failing to go to his appointed place of duty on 4, 15, and 16 February 1981; his punishment included a reduction to pay grade E-2 and he was reduced accordingly on 10 February 1981 * 23 February 1981 – failing to go to his appointed place of duty e. The complete separation packet is not available for review by the Board. However, his available records contain parts of this packet as follows: (1) A Recommendation for Elimination Under the Provisions of (UP) Chapter 14, Army Regulation (AR) (Personnel Separations – Enlisted Personnel) memorandum, dated 16 February 1981, wherein the applicant, after consulting with counsel, acknowledged the proposed separation action. He also acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life * he waived his rights for a personal appearance before the board * he waived his appearance before a board of officers * he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge (2) A Statement, wherein the applicant stated, he wished to get out of the Army with an honorable discharge. He had family problems since the death of his mother, which no one seemed to understand. His father was playing father and mother to his younger sisters and brothers. Lately, his father had been spending more time in the hospital and missing many days from work, which meant the bills were not being paid on time. He talked to his platoon sergeant about his family problems and the sergeant stated he would talk to his commander. He had not received a response. He wanted to get out of the Army because the Army did not care about him and his family. He could not cope with the Army while his family was going through very hard times. (3) A DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged , in pay grade E-1, on 25 May 1981, UP AR 635-200, paragraph 14-33b(2), by reason of misconduct, an established pattern of shirking. The form also shows completed 1 year, 11 months, and 21 days of active service, his service was characterized as under other than honorable conditions, and he was awarded/authorized the Marksman and Expert Marksmanship Qualification Badges with Rifle and Hand Grenade Bars. f. On 24 February 2000, the ABCMR determined the applicant’s administrative separation was accomplished in compliance with applicable regulations and denied his petition for an upgrade of his discharge. g. On 20 August 2003, the ABCMR denied his request for reconsideration because more than 1 year had elapsed since the original consideration of his case and the staff of the Board had determined his current application did not contain evidence not previously considered by the Board. h. An advisory opinion was received from the Senior Medical Advisor, Army Review Boards Agency, on 20 September 2018, in the processing of this case. The medical advisor reiterated the applicant’s request, period of service, and Department of Veterans Affairs’ medical encounters. The advisor stated: * review of the available documents found the applicant did not have any mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army * the applicant met medical retention standards for physical, medical, dental and/or behavioral conditions in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3 and following the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that were applicable to his era of service * no evidence was found of a medical disability or condition that would support a change of the character or reason for the applicant’s discharge i. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. In his response, the applicant stated he thinks he should have received a medical discharge for his lower back, right knee, and both ankles. He accepted his under other than honorable conditions discharge because he had just loss his mother and his father was very sick. He would be happy with the medical discharge or the upgrade. It was his understanding that his unit should have scheduled a physical examination for him and this never happened. His sergeant stated he would help him with the matter. He provided copies of the following: * Office Visit summary, dated 5 June 2018, showing he was seen for moderate neck and back pain * Patient Referral Form, dated 6 June 2018 * Radiology Report, dated 16 June 2018, showing he underwent an Magnetic resonance imaging of the cervical and lumbar spine * Encounter Report, dated 26 July 2018, showing he received follow-up care for severe neck, arm, and hand pain 4. By regulations: a. AR 635-200, action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. When a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. AR 635-40, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. c. AR 40-501, a Soldier may be discharged from the Army for not meeting retention standards. 5. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The advisory official noted there were no boardable medical conditions at the time of his separation, nor evidence of medical mitigating factors towards his misconduct. The applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider when considering a discharge upgrade. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR1999023798 on 24 February 2000. 12/4/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. The regulation also stated in: a. Paragraph 3-7a (Honorable discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met, the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General discharge) – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a member whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It stated the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). 4. 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 based on 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. NOTHING FOLLOWS