ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160014944 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Englewood Medical, Problems Report 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 was basically bullied out of the Army by his company commander and his first sergeant because he was black. He was told so to his face. He was not the only one either. b. His company commander revoked his leave when his wife gave to birth to his son, while all the white men in the company whose wives were pregnant were give leave. He had to go to the battalion commander to get his leave approved, so when he returned from leave, he was given all of the [unpleasant] details for going over the head of the company commander and the first sergeant to get his leave. c. They then took steps to transfer him to Korea as a punishment, so he went absent without leave (AWOL). Being young, he did something stupid, but at the time he felt the constant badgering and berating was too much to bear. That left a bad taste in his mouth. d. Now he is experiencing health issues because of his military occupational specialty (MOS). He submitted six pages of civilian healthcare documents supporting his request. 3. The applicant enlisted in the Regular Army on 1 August 1978 and was awarded MOS 19F (Truck Driver). 4. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 June 1979 for absenting himself without authority from his unit from on or about 21 March 1979 through an unspecified date and again from 1 June 1979 through 8 June 1979. 5. On 23 June 1980, he was charged with absenting himself from his unit without authority on the following occasions: * from 15 December 1979 through 31 December 1979 * from 2 January 1980 through 4 January 1980 * from 24 January 1980 through 7 June 1980 6. On 19 June 1980, he underwent a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate by his command. 7. On 24 June 1980, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf and waived a separation medical examination. 8. On 8 July 1980, his immediate commander recommended approval of his request for discharge and recommended the issuance of a UOTHC Discharge Certificate. He stated the applicant was charged with three periods of AWOL totaling 144 days and was apprehended by civilian authorities. The applicant had become disillusioned with the military and was AWOL due to personal problems. His further retention would not be in the best interest of the Army. 9. On 11 July 1980, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed the issuance of a UOTHC Discharge Certificate. 10. His DD Form 214 shows he was discharged on 4 August 1980 for the good of the service for conduct triable by court-martial and his service was characterized as UOTHC. He completed 1 year, 7 months and 19 days of active service during this period with lost time from 4 June 1979 through 7 June 1979, from 15 December 1979 through 30 December 1979, from 2 January 1980 through 3 January 1980, and from 24 January 1980 through 7 June 1980. 11. There is no evidence in his military records he was diagnosed with any physical or mental conditions during his service. 12. On 26 June 2018, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion, which states: a. A review of the applicant’s electronic medical record (AHLTA) revealed no records (note: implementation began in 2003). The applicant’s paper Military Personnel Records Jacket (DA 201) and paper Service Treatment Record (STR) were both available for review from the National Personnel Records Center. Department of Veterans Affairs (VA) Form 3101 (Request for Information, dated 20 April 2015 states all available records (medical/dental – STRs) were shipped to the contracted scan center for upload into VBMS on 24 April 2015. The applicant has no Interactive Personnel Electronic Records Management System (iPERMS) records (note: implementation began ~2000). b. 1 August 1980, was his first day of active military service. He made a clinic visit on 19 September 1978 for ARD (acute respiratory disease); a clinic visit on 25 September 1979 for headache, cough, sore throat x 24 hours; and a clinic visit on 26 September 1979 for complaint of left foot x 1 days. Patient states he got foot caught between PAC and turn of tank. Patient also complaint of flu and loss of appetite x 3 days. c. He made an Emergency Room visit on 3 February 1979 at 0313 for chills/fever with temperature of 96 degrees. He presented with chills, sore throat, since 2300 hours. Anorexic; vomited; probable bacterial pharyngitis; antibiotic prescribed. d. A Standard Form 513 (Orthopedic Consultation), dated 22 June 1979 lists a complaint of numbness in right hand for over 3 days: “19 year old left handed, 19 Jun 1979, heavy wheel fell on right hand, points to distal forearm as site of compression. “I can’t feel nothing in the hand.” No motor paralysis but hypesthesia (almost anesthesia) of distal forearm, hand and fingers. X-rays okay. Contusion of right forearm with sensory nerve injury. Thought permanent problem. Function encouraged. Follow-up somewhere in 1 month. e. He made a clinic visit on 22 October 1979 for sharp lower back pain x 2 weeks. Patient states he was moving furniture when pain first occurred…lower back muscle strain. f. He made a clinic visit on 2 November 1979 with complaint of drainage from left forearm where lipoma was removed x 1 day. Standard Form 515 (Tissue Examination), dated 2 November 1979 for excision biopsy left forearm. Microscopic diagnosis: Soft tissue, left forearm, biopsy; nonspecific fibrosis. Comment: This lesion may represent an old fibrotic hemangioma, based on the increased number of vessels. g. Lumbosacral spine x-ray series on 8 November 1979 showed no radiographic abnormalities noted. h. Standard Form 513 (Physical Therapy Consult), dated 14 December 1979 for lower back pain x 4 months. Mechanism of the injury unknown. Physical Therapy visit on 14 December 1979: “Patient has slight lordosis which may be causing mechanical LBP (low back pain). i. Emergency Room visit on 12 January 1980, arrived by POV, with complaint of back pain and patient states he has a cold and back pain x 8 months. He has been seen at PT (physical therapy) – chronic problem. Follow-up TMC (troop medical clinic). Duty. j. Clinic visit on 14 January 1980 for onset of some problem with back returned on 4-5 days ago. No meds now. Seen by PT (physical therapy) for problem. Diagnoses with mechanical low back pain. k. Clinic visit on 16 January 1980 for history of low back pain last seen on 14 January 1980. Objective: Point tenders lumbar region. SLR (straight leg raise) right 90 degrees, left 90 degrees with pain increasing. Flattened curve. Lacks full forward flexion (15 degrees). Assessment: Muscle strain…No heavy lifting over 10 pounds x 5 days. l. Clinic visit on 21 January 1980 for complaint of back ache in lumbar spine for 8 months. Diagnosed as mechanical low back pain. Seen several times since onset with minor or no relief. Assessment: Low back pain, possible muscle spasms versus disc disorder. Given physical profile for 21 days light duty, apply local heat, Motrin. m. Clinic visit on 24 January 1980 for follow-up for low back pain provide for 21 days. Patient has physical profile no heavy lifting. RTD (returned to duty). n. DA Form 2-1 (Personnel Qualification Record – Part II) dated January 1980 shows a physical rating PULHES-111111 and physical category code A, no limitation. o. Medical Examination for Separation/Retirement – Statement of Option dated 18 Jun 1980. “I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty. If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review. I (_do) (_X_ do not) desire a separation medical examination.” p. DA Form 3822 (Mental Status Evaluation) dated 19 June 1980, states his service member has been given a mental status evaluation on 19 June 1980, and has been psychiatrically cleared for any administrative action deemed appropriate by his commander. q. Englewood Medical Problems Report (6 pages) printed 10 August 2016 lists the following: psychosocial problem, snoring, benign prostatic hypertrophy, opioid use, insomnia, SVT (supraventricular tachycardia), sick sinus syndrome, hearing loss bilateral, vision impairment both eyes, permanent pacemaker, tobacco use, and spinal stenosis in cervical region. r. Limited review of VA records through the JLV (Joint Legacy Viewer) with no record. “The patient is currently not registered at a VA site, and therefore no VA data will be displayed.” s. The available record does not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant’s military service. There were no behavioral health conditions present at time of misconduct t. The applicant met medical retention standards for low back pain, history of right hand injury, history possible cold injury feet, status post excision left forearm mass, EPTS (existed prior to service) appendectomy, EPTS left 5th metatarsus fracture, EPTS left knee injury, and other medical, physical, dental and/or behavioral conditions chapter 3, Army Regulation 40-501 (Standards of Medial Fitness). u. 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. 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. There was no indication for disability evaluation system processing in this case, i.e. no indication for Medical Evaluation Board/Physical Evaluation Board. 13. On 2 July 2018, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but did not respond. 14. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 15. 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. 16. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board considered the applicant’s contentions, medical concerns, and the medical advisory opinion. The Board agreed the 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 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 3. 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. ABCMR Record of Proceedings (cont) AR20160014944 7 1