ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20160015153 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharged be changed to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he was medically unfit to due loss of visIon and a blood clot in his left leg. 3. Special Court-Martial Order Number 3145, dated 28 October 1968, shows the applicant pled guilty and was found guilty of being absent from his unit without authority from on or about 11 May 1968 to on or about 15 October 1968. His sentence consisted of confinement at hard labor for 3 months and forfeiture of $73.00 per month for 1 month. 4. Summary Court-Martial Order 902, dated 17 September 1969, shows the applicant pled guilty and was found guilty of being absent from his unit without authority from on or about 30 June 1969 to on or about 28 July 1969. His sentence consisted of forfeiture of $5.00 per month for one month and restriction for 10 days. 5. On 20 November 1969, Medical Board Proceedings found the applicant medically unfit due to homonymous hemianopsia, intracerebral hematoma and AV malformation, and thrombophlebitis, lower extremity. 6. On 8 December 1970, the applicant was charged with being absent without authority on the following occasions: * from on or about 7 July 1970 to on or about 27 November 1970 * from on or about 1 June 1970 to on or about 23 June 1970 * from on or about 13 April 1970 to on or about 16 April 1970 7. On 2 February 1970, the applicant’s doctors determined that the condition for which the applicant was placed before the medical board was not the cause or the contributing cause for his unsatisfactory conduct. 8. On 27 November 1970: a. The applicant 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 legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He did not submit statements in his own behalf. b. The separation authority approved the applicant's request directing he be issued an Undesirable discharge. He was discharged in in accordance with the separation authority’s direction. He completed 2 years, 3 months, and 6 days of net service this period. His service was characterized as UOTHC. 9. On 11 October 1979, the applicant appeared before a Travel Panel of the Army Council of Review Boards but the findings of the Board are not available for review. However, a letter dated 1 March 1982, from the Army Council Review Boards states the applicant did not provide new, substantial, relevant evidence at that hearing and he was ineligible for another hearing. 10. On 18 March 2019, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) clinical psychologist, who states in part, the applicant did not meet medical retention standards for his right homonymous hemianopsia, intracerebral hematoma and AV malformation, and his thrombophlebitis, left lower extremity, in accordance (IAW) with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant’s era of service. The applicant’s medical conditions were duly considered during his separation processing; however, the medical discharge proceedings were ended because of his pending (3rd) court-martial IAW Army Regulation 635-40. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character(s), reason(s), rated condition(s), disability determination(s), disability rating(s), and combat relatedness for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 20 March 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed 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 in lieu of trial by court-martial. 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating 14. In reaching its determination, the Board can consider the applicant's petition, his statements, and medical/service documents, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical discharge proceedings were ended because of his pending (3rd) court-martial IAW AR 635-40. The applicant’s medical conditions were duly considered during his separation processing. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character, reason, disability determination, disability rating, or combat relatedness for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical conditions for the offenses, which led to the applicant’s separation from the Army. Therefore, the Board found that 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 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 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 10 of that regulation provides, in pertinent part, that a member who has committed 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 in lieu of trial by court-martial. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating. a. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence b. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A case file may be so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 4. 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 (TBI); 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20160015153 2 1