ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20160015469 APPLICANT REQUESTS: reconsideration of his previous request(s) for an upgrade of his undesirable discharge. He also requests a personal hearing before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Department of Veterans Affairs (VA) correspondence * Social Security Administration correspondence * Statement from his spouse * Letter from the National Personnel Records Center * Civilian Medical records * Local Arrest Record information FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in: * Docket Number AC86-06278, dated 21 January 1987 * Docket Number AC93-06730, dated 2 June 1993 * Docket Number AC93-06730D, dated 8 October 1997 * Docket Number AC93-06730E, dated 22 July 1999 2. The applicant states: a. During his term of service, he sustained a torn meniscus, and was treated at Fort Sill, OK in 1979. Within a month of his injury, he received orders to deploy to Karlsruhe, Germany. When in Germany, he was still hurt and his right knee bothered him a lot. Within 2 months of his July 1981 ETS (expiration term of service) date, he received several Article 15s and a special court marital, attributable to his inability to perform due to his injury. He was sentenced to 119 days, effective 12 May 1981. He was told that if he took the plea, he would serve his sentence and receive an honorable discharge. b. Several weeks after he was sentenced, and before his new ETS in September 1981, he was ordered to report to Fort Riley, KS to retrain. He could not physically perform due to his injury, and received another Article 15 alleging that he was not fit for duty. He applied for and was denied a medical discharge, although his knee condition was acknowledged. He was scheduled for surgery, but on the day of surgery, he could not attend because of the court martial. He was never provided the surgery. Instead, he was intimidated into signing an administrative discharge at a separation hearing. He was told if he did not perform PT (physical training) within 2 weeks, he would be eliminated from the service, and if he did not sign a waiver, they would find a way to send him to Leavenworth. Seven days before his ETS date, he was brought before a discharge board. He did not have an attorney at the hearing and he was not provided an opportunity to speak with an attorney. He did not understand the proceedings and what his rights were. c. Part of the basis for the administrative discharge was an off base fight where he was accused of assaulting an NCO (noncommissioned officer). He was never provided an opportunity to contest the allegation, and the NCO did not show up to court. He had been called racist names and the supposed NCO was in civilian clothes. He still has some problems with his right knee due to his service injury, and recently had a total knee replacement. There was no reason why he should have been removed from confinement and sent to retraining where he could not physically perform the required duties. It is therefore inequitable or unjust that he received an under other than honorable discharge where his service injury caused his inability to perform. 3. The applicant provides: a. A statement wherein he states he has enclosed letters from the Army and doctors documents in reference to his situation. He states: (1) He understands that there is a time limit by law, but he does not understand what is meant by "basis shown." To the best of his knowledge, the time limit is 15 years to act upon a discharge. He has been disabled from injuries that occurred in the Army. He acted upon good faith when he joined the Army. Why is it that the Army will not act in good faith in changing his discharge to honorable? He has written letters to the Army over and over, in an attempt to rectify this situation. He has done everything in his power to change this error. His family is suffering right along with him as a result of his disability. In a previous letter, the Board stated that an error or injustice must exist in order to recommend correction of his military records. He has enclosed documents which prove that such an error exists. During the time period which he was charged with sleeping in class, he was under medication that resulted in him being very drowsy and the Army was aware of this at the time. Also, the incident at the NCO club where he was charged with disorderly conduct. He was being harassed and was not at fault in this situation. When he was given an Article 15 for missing bed check, the MPs had him in custody, so how could he be considered AWOL (absent without leave)? When he was written up for a security violation for leaving clothes on the washing machine, he was stunned and confused. (2) These articles of clothing did not belong to him but for another person with the same last name. Finally, he was charged with breaking his medical profile, but he was sent to motivation and training, which only aggravated his medical condition. He knew that this was making his physical problem worse, but he participated because he was told that this was the only way to receive an honorable discharge. (3) He suffered many days while in the military but he persevered because he wanted to serve his country. All of the incidents that took place have not been reported in the manner in which they occurred. He has been offered rehabilitation, but due to his physical limitations, he was unable to sit through class for long periods of time. He is a human being; not a number to be eliminated. In this matter, he feels that justice was not served. b. Several letters from the VA in relation to his service-connection, meeting or not meeting the VA statutes, and his rights to appeal. c. Request to the U.S. Army Court of Criminal Appeals requesting copies of his court-martial conviction record of trial and response from the Court informing him such record of trial was not available in their database/historical files. d. Request to the National Personnel Records Center and response providing him with copies of his official military personnel records. e. Letter from his spouse stating she has been married to him for 20 plus years and they have 5 children. During their children's adolescence, they did their best to provide for them while being in poverty. Her husband has suffered severely from his other than honorable conditions discharge from the Army. He could not hold a job due to his right knee being injured which resulted from him being in the Army. She has also noticed that her husband suffers from mental illness in the form of post-traumatic stress disorder. Her husband has been under insurmountable amounts of stress due to all of these factors. This has been a very long and hard road for her husband and their family. Because the VA Hospital refused to aid him in the matter of his discharge and injury that he received while enlisted in the Army, their options have been very few. Her husband and she reviewed his discharge and found that he did serve 3 years in the Army, from 28 July 1978 to 4 November 1981. They are asking for forgiveness for his immaturity at the time which he was 18-21 years of age. They are asking that the Army will show mercy and change his status to general or honorable. f. Second letter from his spouse wherein she states as a result of her husband's knee injury, her children and she suffered a great deal of poverty and anguish throughout the situation because her husband was limited in being financially able to support their family. She dealt with large amounts of stress from watching her husband try to cope with his injury and his circumstance which continued for years. Following this he started rehabilitation and things started looking up. Their lives have been very uncomfortable and full of uncertainty. She hopes that the Board can come to a decision that will help afford them the opportunity to experience some relief. g. Miscellaneous civilian medical records, receipt, medical bills, examination reports, blood work, images, and other related documents. h. A letter from a retired sergeant first class (SFC), a friend of the applicant who states they have known each other for thirteen years. The applicant suffers from many physical ailments that are service related. He has witnessed everyday pain and suffering he is bearing. His back pains and knees were so bad he would be careful how he turn, bend, reach, walk, and how much he lift. At least three times a month his back and knees would go out. In 2015 or 2016, his back pain was so severe he had to have back surgery to help ease the chronic pain. Before surgery he had to receive steroid injections in his back and knees to ease the pain (the author lists the applicant's medications). The author also states he believes the applicant is suffering from PTSD. He doesn't like to be around a crowd of people. When they went out to restaurants, he would always sit with his back to the exit. Sometimes he screams at him or his spouse and friends for no reason at all. He noticed he would day dream a lot and sometime it felt he was losing his mind. He forgets things he tells people and when he is reminded what he said he gets angry. He constantly has nightmares that scared him. He (the author) advised him to go see a psychology for help. He (the author) recognizes Veterans who have PTSD because he himself has it. For the last sixteen years, he has been seeing a psychologist who is truly helping him cope from day to day. i. Letter from the Jacksonville Sheriff's Officer, Jacksonville, FL, that states the Jacksonville Sheriff's Office has performed a criminal history background check on the individual listed below (applicant's name and date of birth are listed). Since neither fingerprints, nor an identifying number accompanied his request, their office cannot guarantee this information concerns the named individual. As per state and federal guidelines, this agency can only check for local arrest information. j. Letter from the Social Security Administration advising him of his status. 4. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 28 July 1978. He held military occupational specialty 76C (Equipment Records and Parts Specialist). b. He served in Germany from 3 March 1980 to on or about 7 May 1981. He was promoted to specialist four/E-4 on 30 September 1980. c. On 20 November 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 6 November to 10 November 1980. His punishment included forfeiture of pay and extra duty and restriction. d. On 12 May 1981, he was convicted by a special court-martial of four specifications of failure to report, one specification of being AWOL from 2 to 4 March 1981, one specification of missing movement, one specification of breaking restriction, and one specification of being incapacitated for the performance of his duties. The court sentenced him to reduction to E-1, forfeiture of $334.00 pay per month for 3 months, and confinement for 119 days. e. On 22 May 1981, the convening authority approved the sentence and ordered it executed. A legal review as conducted by Headquarters, 21st Support Command on 4 June 1981. The applicant was confined from 12 May to 27 July 1981 in Mannheim and from 28 July to 18 August 1981 at Fort Riley, KS. f. Following his release from confinement, he was assigned to the U.S. Army Retraining Brigade for the purpose of receiving correctional training to return him to duty as a well-trained Soldier with improved attitude and motivation. His commander wrote a statement indicating that * The applicant's actions since arrival preclude accomplishment of the objective as evidenced by the resume of behavior, attitude and ability; he had demonstrated little desire for returning toduty * he has received counseling by members of the leadership team and members of the professional staff agencies * in his opinion, this individual possesses the mental and physical ability necessary to be an effective soldier, but his present record and failure to react constructively to the rehabilitation program are indicative that he should not be retained in the service g. On 8 September 1981, he again accepted NJP under the provisions of Article 15 for being disorderly at the NCO Club. His punishment included forfeiture of pay (suspended) and extra duty and restriction (some of which was suspended). h. On 9 September 1981, he again accepted NJP under the provisions of Article 15 for disobeying a lawful order by failing to return to his training team after sick call. His punishment included forfeiture of pay, and extra duty and restriction (some of which was suspended). i. On 27 October 1981, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 14-33, for misconduct, due to frequent incidents of a discreditable nature. The commander advised the applicant of his rights. j. On 27 October 1981, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He waived consideration of his case by a board of officers and/or personal appearance before a board and he elected not to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under 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 k. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, frequent incidents of a discreditable nature, in accordance with AR 635-200, chapter 14 The commander opined that the applicant's conduct and efficiency wee unsatisfactory. Discharge for unsuitability was not deemed appropriate because the applicant's behavior is not due to an inability to satisfactorily perform within the meaning of unsuitability. The applicant had received considerable counseling since his arrival at this facility by the social workers, leadership team and unit cadre. He failed to respond favorably to this counseling or from duties given him. The applicant did not meet the criteria for further rehabilitation attempts. Elimination of this individual under the provisions of other regulations is not considered appropriate. The intermediate commander recommended approval and concurred with the recommendation that requirements pertaining to counseling and rehabilitation be waived. l. The separation authority approved the applicant's discharge under the provisions of paragraph 14-33 of AR 635-200 with his service characterized as under other than honorable conditions discharge. The applicant was discharged accordingly on 4 November 1981. j. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct – Frequent involvement in incidents of discreditable nature with civil or military authorities, (Separation Code JKA), under the provisions of AR 635-200, paragraph 14-33b, with his service characterized as under other than honorable conditions. He completed 2 year, 11 months, and 20 days of active service, and he had lost time from 6 to 9 November 1980, 2 to 3 March 1981, 7 to 8 March 1981, and 12 May to 18 August 1981. He was awarded or authorized the Rifle and Hand Grenade marksmanship badges. k. The the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB voted to deny his petition for an upgrade of his discharge. l. On 21 January 1986 (AC86-06278), the Board considered his petition but denied his request for disability separation. The Board sought a medical evaluation of his records and concluded the following: * The applicant's entrance physical examination on 19 July 1978 was essentially normal, with a profile of "1-1-1-1-2-1" * Review of records shows he suffered a knee injury around September 1979; torn meniscus was suspected and surgical treatment was contemplated, but not carried out because of intervening disciplinary difficulties * Separation physical examination on 29 October 1981 listed the following findings: large effusion of the right knee and anterior laxity; torn meniscus * The record also reflects a multitude of disciplinary infractions; these precipitated several punishments under Article 15, UCMJ and a Special Court Martial on 12 May 1981 for failure to go to appointed place of duty, AWOL, Violation of restriction, and Incapacitation for duty * Parenthetically, noted in the record is a medical evaluation note, dated 14 November 1984 (from a VA facility) which states that on that date this individual was six months post lateral meniscectomy, with no effusion of the knee, no instability; however with continuing pain along the lateral- joint line; the assessment was that of degenerative process in the right knee * In summary, the applicant has had a significant knee problem while on active duty which, however, did not exceed the retention standards of Chapter 3, AR 40-501 (Standards of Medical Fitness); physical disability processing was and remains not justified l. On 2 June 1993 (AC93-06730), the Board considered his petition but denied his request for an upgrade of his undesirable discharge. m. On 8 October 1997 (AC93-06730D), the Board considered his petition for reconsideration of his previous request for an upgrade of his discharge but found no evidence of an error or an injustice. The Board denied his request for an upgrade of his undesirable discharge. n. On 22 July 1999 (AC93-06730E), the Board considered his petition for a second reconsideration of his previous request for an upgrade of his discharge but found no evidence of an error or an injustice. The Board denied his request for an upgrade of his undesirable discharge. o. The Army Review Boards Agency senior medical advisor reviewed his service and civilian and his VA medical records and rendered a medical advisory opinion on 24 April 2019. The medical advisor stated: (1) Review of the applicant's electronic VA medical record (JLV) indicates that the applicant is not service connected. Based on the available medical record, the applicant met retention standards IAW AR 40-501. (2) In regards to his most significant medical problem of right knee pain/torn meniscus. He had been scheduled to undergo surgery multiple times while on active duty, however the applicant never had the procedure due to disciplinary problems. According to the available information, the applicant was never on a permanent profile and was not at Medical Retention Determination Point (MRDP). (3) Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant's record to IDES (integrated disability evaluation system) for consideration of military medical retirement is not indicated at this time. (4) In addition, based on the information available for review at this time, the applicant did not have mitigating medical or behavioral health conditions for the offenses, which led to their separation from the Army. p. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 5. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the violent nature of some of the misconduct and a lack of evidence provided by the applicant to show his knee injury warranted a medical separation (as a result of his discharge physical at the time of separation), the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the characterization or narrative reason for separation. 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. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Personnel Separations) 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which 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 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 based on 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. ABCMR Record of Proceedings (cont) AR20160015469 9 1