ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20160014917


APPLICANT REQUESTS: in effect, a correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show (block 28) narrative reason for separation as a medical discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Veteran Affairs (VA) Summary of Benefits
* VA Letter Certifying Service-Connected Benefits

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 that he was found to be 70% disabled due to conditions that occurred during his time in the military.  The applicant states that he would like block 28 (narrative reason for separation), on his DD Form 214 to be corrected to show disability.

3.  The applicant provides a VA Letter annotating the following benefits of a service connected disability with a rating of 70%.  He also provides a letter certifying his service connected disability of 70% from the VA (condition not listed).

4.  A review of the applicant’s active duty service record shows the following:

	a.  He enlisted in the Regular Army on 9 September 1999.

	b.  He served in Germany from 21 February 2000 to 20 February 2002.

	c.  He accepted nonjudicial punishment (NJP) on 28 June 2001 for assaulting a senior non-commissioned officer (NCO).  His punishment included reduction to the grade of private/E-1.
	d.  On 30 July 2001, his immediate commander initiated separation of the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12c for misconduct-commission of a serious offense.  The reason for the immediate commander’s action are:

* for NJP accepted for disrespecting and assaulting two NCOs
* failure to be at his appointed place of duty on three separate occasions
* recommendation of a General Discharge Certificate

	e.  After an exhaustive search, facts and documents pertaining to the applicant’s notification and acknowledgment by his immediate commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12c are not available for the Board to review.

	f.  On 30 July 2001, the applicant waived his right to consult with appointed counsel.  However, he acknowledge that he understood the basis for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights.  He understood if he had less than six years total of active and reserve military service at the time of separation and am being considered for separation for misconduct under 
AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board.

	g.  On 30 July 2001, his immediate commander recommended separation under the provisions of AR 635-200, chapter 14-12c for misconduct-commission of a serious offense with the issuance of a General Discharge Certificate.

	h.  On 1 August 2001 the applicant’s intermediate commander recommended separation and the separation authority approved it. 

	j.  He was discharged from active duty on 10 August 2001.  His DD Form 214 shows that he was discharged under the provisions of AR 635-200, chapter 14-12c (block 28-narrative reason) misconduct with an under honorable conditions character of service.  It also shows that he completed 1 year, 11 months, and 2 days of active duty service.

	j.  On 10 April 2019, the medical advisory stated that the applicant met medical retention standards for dysthymic disorder (mild) and avoidant traits IAW Chapter 3, AR 40-501 , and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service.  A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case.  

	k.  On 11 April 2019, the applicant was sent an ex-parte letter regarding the medical advisory opinion; however, he did not respond.

5.  By regulation, AR 635-200 establishes policy and prescribe 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. 

6.  AR 40-501 (Standards of Medical Fitness), chapter 3 states gives the various medical conditions and physical defects which may render a soldier unfit for further military service and which fall below the standards required for the individuals.  Soldiers pending separation in accordance with provisions of AR 635–200 or AR 600–8–24 authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB.  In the case of enlisted soldiers, the physical disability processing and the administrative separation processing will be conducted in accordance with the provisions of AR 635–200 and AR 635–40.

7.  AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

8.  By regulation, Army Regulation (AR) 635-5 (Personnel Separations - Separation Documents) block 28 (Narrative Reason for Separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority.  

9.  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 found relief is not warranted.  The applicant’s contentions, medical concerns, and the medical advisory were carefully considered.  The medical advisory official determined there was no boardable medical condition during his period of active service, nor mitigating factors to his misconduct and subsequent separation.  He was provided the opportunity to rebut the advisory; however, he did not respond.  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 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.  The Board agreed that the applicant's general discharge was warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.
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.


	 
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.  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.

3.  Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

	c.  Chapter 14 of that regulation states members are subject to separation for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.   

4.  AR 40-501 (Standards of Medical Fitness), chapter 3 states gives the various medical conditions and physical defects which may render a soldier unfit for further military service and which fall below the standards required for the individuals.  Soldiers pending separation in accordance with provisions of AR 635–200 or AR 600–8–24 authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB.  In the case of enlisted soldiers, the physical disability processing and the administrative separation processing will be conducted in accordance with the provisions of AR 635–200 and AR 635–40.

5.  AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  The objectives of this regulation are to—

	a.  Maintain an effective and fit military organization with maximum use of available manpower.
	b.  Provide benefits for eligible Soldiers whose military Service is terminated because of a service-connected disability.

	c.  Provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected.  d. Establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 profile for a medical condition that meets the medical retention standards of AR 40–501. Dispositions include retention in primary military occupational specialty (PMOS), reclassification, and referral to the DES.

6.  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//

ABCMR Record of Proceedings (cont)	 AR20160014917
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