ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 June 2019

	DOCKET NUMBER:  AR20160015120


APPLICANT REQUESTS: his discharge be upgrade to honorable vice under other than honorable conditions 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* State of Mississippi – High School Equivalency Diploma dated 9 July 2009
* Certificate – Congressional Recognition from U.S. Representative dated 17 February 2010
* two Certificates – U.S. Senators dated 17 February 2010
* three Certificates – Congressional Recognition for Career Connections Power of Work Award, Goodwill of Southern Nevada dated 17 February 2010
* Certificate – the Las Vegas Metropolitan Police Department dated 6 June 2014
* two Certificates – U.S. Representatives for "Hope for Prisoners Program" dated 6 June 2014
* Certificate of Completion – Safeway Defensive Driving Course dated 22 October 2015
* Certificate – Nevada State Senator "Hope for Prisoners" dated 6 June 2014
* Certificate – Governor of Nevada “Hope for Prisoners” dated June 2014
* Certificate – U.S. Senate for “Hope for Prisoners” dated 6 June 2014
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20090010061
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 April 1981

FACTS:

1.  The applicant did not file within the 3 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.  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 AR20090010061 on 22 December 2009. 

3.  The applicant states he wants his discharge upgraded to honorable so he can qualify for Department of Veterans' Affairs benefits.  He provides certificates for the Board's review to show he has matured and continues to live a good life and tries to help others by improving their lives.  He concludes by stating he was being treated by an Army psychiatrist for anger issues and he now has his anger under control.  

4.  The applicant enlisted in the Regular Army on 13 July 1979.  While in a training status, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for wrongfully possessing marijuana.  He completed training and was reassigned to Headquarters and Headquarters Company, 1st Battalion, 36th Infantry in U.S. Army – Europe (USAREUR) stationed in West Germany effective 15 October 1979.    

5.  On 17 January 1980 he was counseled by his supervisor for writing dishonored checks to the Post Exchange.  

6.  The applicant's service personnel record contains two U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Reports of Investigation which indicate he was involved in an altercation in a civilian bar and committed aggravated assault on a female German national.

7.  The applicant's complete discharge packet is not available for review.  On 12 February 1981, the unit commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b (1), by reason of misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities.  The applicant acknowledged notification of the separation action and acknowledged that he had been counseled regarding the type of discharge he would receive and the possible effects on him.  His elections of his rights is not available for review.  However, he would have acknowledged he:

* waived consideration of his case and a personal appearance by an administrative separation board
* understood he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded  

8.  His personnel record does contain Orders 90-52 dated 31 March 1981 showing he was authorized to transfer to an authorized stateside Separation Transfer Point to initiate and complete separation processing.  An amendment to these orders was published showing his effective date of discharge as 7 April 1981. 

9.  He provided and his record contains a DD Form 214 indicating he was discharged on 7 April 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 8 months, and 25 days of creditable active service. His service was characterized as under other than honorable conditions.  

10.  There is no indication he applied to the ADRB within its 15-year statute of limitations.

11.  On 22 December 2009 the ABCMR denied his initial request.

12.  In support of his application, he provided numerous certificates showing he was recognized for his work and/or accomplishments at the Goodwill of Southern Nevada.  Various members of Congress provided him with certificates complimenting him on his achievement.  The second group of certificates expressed appreciation for his completion of a “Hope for Prisoners” program conducted through the State of Nevada.  He was recognized with certificates by both State and Federal elected officials.  Finally, he provided his High School Equivalency Diploma from the State of Mississippi showing he completed the program and received his diploma effective 9 July 2008.

13.  On 8 May 2018, the staff of the Army Review Boards Agency sent the applicant a letter requesting he provide his medical records either military or civilian to support his medical contention.  He failed to respond.

14.  On 19 June 2018, the Army Review Boards Agency (ARBA) staff psychologist 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 or his separation code based on a lack of medical evidence.  The advisory author stated that without supportive medical information, he could not determine if a mental health diagnosis mitigated his misconduct.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

15.  The applicant was provided a copy of the advisory opinion on 19 June 2018 and given an opportunity to submit comments.  He did not respond. 


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions 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.  Based upon the record, 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 AR20090010061 on 22 December 2009.


	 
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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

     a.  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.

     b.  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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

3.  Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards.  Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board (PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The PEB will make the determination of fitness or unfitness and then based on law a Soldier will be medically separated or medically retired. 

4.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

     a.  Chapter 3 states the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

     b.  Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015120


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