ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 February 2019 DOCKET NUMBER: AR20160015111 APPLICANT REQUESTS: 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) * DA Form 4256 (Clinical Record-Doctor's Orders), dated 15 July 1987 * Therapeutic Documentation Care Plan, dated 15 July 1987 * Department of Veterans Affairs (VA) letter, dated 29 July 2016 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. 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 AR20050001246 on 26 October 2005. 3. The applicant states: * he feels the punishment exceeded the offense of which he was accused * he was involved in a heated verbal confrontation with a superior; his superior invaded his personal space which caused him to lash out verbally * at that time he was placed on report * he never had an opportunity to speak in his own behalf * if an apology was requested he would have gladly given one * he is being denied disability compensation for his illness 4. The applicant enlisted in the Regular Army on 8 July 1980. He reenlisted on 27 January 1983 and on 28 October 1986. 5. The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 20 June 1988, for stealing two bottles of cologne, the property of the Main Exchange. 6. The applicant's records contain a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 27 September 1988 which shows an adverse action FLAG was initiated against him based on a pending court-martial. 7. The applicant's records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 December 1988, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, and that his service was characterized as under other than honorable conditions. His DD Form 214 further shows: * he was separated in the rank/grade of private/E-1 * he completed 8 years, 4 months, and 24 days of active service * the absence of an entry in block 18 (Remarks) specifying his previous periods of continuous honorable service 8. There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge characterization. 9. In an email addressed to the President of the United States, dated 8 October 2016, the applicant stated the following: [Mr. President], I need your help to pardon me for an incident that happen while was in the military. I have been try to get my discharge upgraded because of a medical condition I had before I got in some trouble in my younger years, something that I regret that I had done. I believe that if I was afforded the opportunity to apologize, I would have because I was a good Soldier up to that point. I had sarcoidosis in 1987 and got in trouble in 1988 and was discharges with an OTH [other than honorable]. I feel that my superior should have never got into my space or in my face which increase the tension between the two of us. Now I am suffering from all the secondary symptoms of the sarcoidosis. I am trying to get benefits for this condition. 10. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. It states: a. A review of the applicant's electronic medical record (AHLTA) revealed no record (note: implementation began in 2003). The applicant's military personnel records jacket (DA 201) was available for review but did not contain the complete separation/discharge packet. Three microfiche were reviewed. The applicant's paper service treatment record was not available for review from the National Personnel Records Center at the National Archives and Records Administration. b. Also reviewed were a Clinical Record - Doctor's Orders for a 15 July 1987 admission to ward for pulmonary sarcoidosis with laboratories, pulmonary function tests, ophthalmology consult, preparation for bronchoscopy, and chest x-ray, and a Therapeutic Documentation Care Plan, dated 15 July 1987, for admission. c. The applicant provided a VA Rating Decision, dated 29 July 2016, regarding hypertension and sarcoidosis. The letter states: The evidence is not new and material evidence because it does not establish a fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating a claim. Review of your claims file reveals that Rating Decisions dated 14 July 1989, 5 October 1999, and 26 June 2012 denied service connection for sarcoidosis because your condition manifested during a period of service that has been determined to be dishonorable and a bar to benefits. On 16 May 2016 you requested that your claim be reopened and submitted copies of service treatment records that were already of record and considered and treatment records from Dr. S. These records have been reviewed and although you have been shown to have been diagnosed with sarcoidosis in service, you sarcoidosis manifested within a period of dishonorable service and is not subject to service connection. Although your private treatment records were positive for sarcoidosis, these records do not indicate that your diagnosis occurred during a period of service that is honorable and subject to service connection. In the absence of evidence of a link between your claimed condition and your military service, service connection remains denied. d. The available record does not reasonably support that post-traumatic stress disorder or another boardable behavioral health condition(s) existed at the time of the applicant's military service. Behavioral health conditions were not present at time of misconduct. e. The applicant met medical retention standards for reported sarcoidosis, reported hypertension, reported back pain, and other medical, physical, dental and/or behavioral conditions in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation that were applicable to his era of service. His medical conditions were duly considered during medical separation processing. f. 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. A diagnosis of sarcoidosis does not mitigate the applicant's misconduct. 11. The medical advisory opinion was provided to the applicant to give him the opportunity to provide additional evidence or a rebuttal. He did not respond. BOARD DISCUSSION: After review of the application and evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the discharge characterization was 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 to amend the decision of the ABCMR set forth in Docket Number AR20050001246 on 26 October 2005. 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): The Remarks section of the applicant’s DD Form 214 shows the entry: //Immediate reenlistments this period: 800708-830126; 830127-861027//. It does not specify his continuous periods of honorable active service, as that was not the DD Form 214 preparation standard at the time of his discharge. The regulation was later changed requiring an entry identifying previous periods of continuous honorable service. Therefore, add to block 18 (Remarks) of his DD Form 214 the entry: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19800708-19861027." 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 provides that a member who commits an offense or offenses for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service at any time after court-martial charges are preferred and must include the individual's admission of guilt. Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service. Consulting counsel will advise the member concerning the elements of the offense or offenses for which he or she is charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service. b. Paragraph 3-7a provides that 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 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. 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 635-5 (Separation Documents), in effect during the applicant's active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It provided standardized policy for preparation of the DD Form 214. The version of the regulation in effect at the time of the applicant's discharge did not provided for an entry identifying prior periods of honorable service. However, the regulation was later changed requiring that in item 18 of the DD Form 214, for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)" will be entered. However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, then "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)" will be entered. Then, the specific periods of reenlistments as prescribed above. ABCMR Record of Proceedings (cont) AR20160015111 2 1