ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 March 2019

	DOCKET NUMBER:  AR20160015006


APPLICANT REQUESTS:  

      upgrade of his under other than honorable conditions discharge to honorable
      correction of his records to show he was discharged for medical reasons

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Standard Form (SF) 600 (Chronological Record of Medical Care)
* City of Redding, California, Police Department Application to Examine Local Criminal History 

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 (ABCMR) 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 he was suffering from asthma but his commander did not want to let him go.  That is the reason why he did not receive a medical discharge.  He had no choice in what type of discharge he received.  He feels he should have been honorably discharged for medical reasons.  He has been an honorable citizen his whole life.  

3.  The applicant enlisted in the Regular Army on 30 July 1973.  He completed basic combat and advanced individual training.  

4.  Court-martial orders published on 8 July 1974 at Fort Hood, TX, show the applicant was found guilty by a special court-martial of being absent without leave (AWOL) from 
4 March to 3 April 1974 and from 30 April to 2 May 1974.

5.  The applicant's records show he again departed AWOL on 1 August 1974 and remained AWOL until 13 December 1974.
6.  The applicant's available records are void of a separation packet containing the specific facts and circumstances surrounding his separation from active duty.  However, his records contain a DD Form 214 (Report of Separation from Active Duty) that identifies the authority and reason for his separation.

7.  The applicant's DD Form 214 shows he was discharged on 11 March 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with his service characterized as under other than honorable conditions.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  The applicant provided:

* an SF 600 showing the applicant requested a prescription refill for an asthmatic condition on 25 September 1973
* A City of Redding, California, Police Department Application to Examine Local Criminal History, dated 23 August 2016, showing the applicant did not have a local criminal history record

10.  On 11 December 2018, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion.  The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing.  There is no available evidence supporting a change to his narrative reason for separation.  The ARBA's senior medical advisor also indicated that based on the available information, the applicant did not have mitigating medical or behavioral health conditions for the offenses that led to his separation from the Army.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

11.  The advisory opinion was provided to the applicant to allow him the opportunity to provide additional evidence or a rebuttal.  He responded and stated the following:

On the day I joined I did mark on the questionnaire that I had asthma.  The recruiter directed me to cross it out, or they could not recruit me.  I was enlisting on the buddy system with my friend [Charles T], but we were separated before getting to basic training.  But the reason I went AWOL was because I was having asthma attacks and when I confronted my CO [commanding officer] he would not consider my request to be released on a medical discharge.  I could not do the runs and marches with my asthma attacks.  So I left and went home.  I returned a few months later and asked my CO to release me and he denied my request again.  And later that evening I was harassed and physically assaulted (slapped around) by 2 of the enlistees.  I left for home the next day for fear of more physical assault.  Also the friend I enlisted with on the buddy system and who also left with me each time was given an honorable discharge.  His name is [Charles T].  I have been a productive and law abiding citizen since my discharge and have worked in the private industry.  I recently retired from my job of 31 years.  I only ask for this upgrade for 2 reasons.  Self-dignity and medical benefits.  In hindsight as a more mature adult I realize I should have handled the situation in a better way.  But as I said earlier I was in fear of further retaliation from my CO.  The statements I made during my discharge process on 13 January 1975 show that I had asthma and shortness of breath.  I don't know why it says I was not using medication for asthma.  I have been on asthmatic meds all my life.  If my CO would have just evaluated me and listened to my initial request, I would not have left.  Thank you for your time.

BOARD DISCUSSION:

After review of the application and all evidence, the Board agreed there is insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered.  Based upon the preponderance of evidence, the Board agreed the discharge characterization was warranted as a result of the misconduct, and the medical concern did not deem the applicant medically unfit for military service.

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.


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

	a.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the Uniform Code of Military Justice, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.

	c.  Paragraph 3-7b states 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.

3.  Army Regulation 15-185 (ABCMR), paragraph 2-2c, states the ABCMR will decide cases on the evidence of record.  It is not an investigative agency.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  
5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the Service Discharge Review Boards (DRBs) and Service 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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015006

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