ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20160016459


APPLICANT REQUESTS: 

* change his bad conduct discharge to a medical discharge
* correct his social security number from XXX-62-XXXX to XXX-65-XXXX

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* SF Form 93 (Report of Medical History)
* DA Form 3349 (Physical Profile)
* DA Form 5181-R (Screening Note of Acute Medical Care)
* DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ))
* DA Form 4187 (Personnel Action) X 2
* rebuttal statement to bar to reenlistment
* involuntary excess leave
* amendment to order 194-39

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 that he is requesting to have his bad conduct discharge changed to a medial discharge and to correct his social security number on his discharge documents.  

   a.  It was an injustice because there were no programs available for addiction when he was in the service.  He asked for help, but received an Article 15 for drug use, he was reduced in rank by two grades and forfeiture of monies.  He went to rehabilitation but the unit reported him as absent without leave (AWOL).  He informed his first sergeant where he was and his first sergeant told him to return to base.  His supervisors knew his addiction was a disability, but they put him on leave without a physical so he could not receive a medical discharge.
   
   b.  He was in a bad place mentally and spiraled out of control.  He began to write bad checks.  He did not receive any assistance the only thing that he received was punishment.  He was then black balled from the military.  
   
   c.  He did not have the ability to appeal because he did not know what was going on.  He was told that he would be notified by mail, he has yet to be notified.  He was not a perfect Soldier.  He was promoted to private first class (PFC) in less than a year and a half, so he had good qualities as well.
   
   d.  Along with the addiction, he also had health issues which meant that he would have to get out of the Army.  That was alright, but what about his illnesses and injuries that he sustain while serving his country.  The past cannot be changed, but it can be corrected and that is what he is asking the Board to do.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army (RA) on 14 November 1985.

	b.  The complete facts and circumstances surrounding the commander’s recommendation for a bar to reenlistment is not available for the Board to review.  There is a portion of the document that shows the bar to reenlistment was for numerous dishonored checks that were written to Army Air Force Exchange Services.

	c.  The applicant’s rebuttal for the bar to reenlistment states when he was identified as someone who had problems, he was being singled out by others to be put out of the service.  He would be counseled that he was unfit to be in the Army and then he would be counseled by others with just the opposite opinion of his performance.  There was either prejudice on someone’s part or someone was wrong.  He admitted that he had issues, but he was working to resolve his problems and he was becoming a better Soldier.  He requested that the placement of the bar to reenlistment be disapproved.

	d.  He accepted nonjudicial punishment on 24 July 1987 for wrongfully used cocaine.  His punishment included reduction to private (PVT) /E-1.

	e.  On 9 September 1987, the applicant was convicted of wrongful disposition of government property, wrongfully appropriated a Kevlar Helmet, and wrongfully received stolen property.  Sentence was adjudged on 9 September 1987 for forfeiture of all pay and allowanced, confinement for 25 months and discharged from the Army with a bad conduct discharge.  During the pretrial agreement concerning the sentence was disapproval of all confinement in excess of 8 months.  The convening authority may approve any other lawful punishment adjudged.

	f.  General court-Martial Order Number 15 dated 24 June 1988, stated that the sentence to a bad conduct discharge, confinement for 8 months, and forfeiture of all pay and allowanced has been finally affirmed; the bad conduct discharge will be executed.

	g.  He was discharged from active duty on 24 June 1988 with a bad conduct characterization of service under the provisions of section IV (Dishonorable and Bad Conduct Discharge), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  His DD Form 214 shows that he completed 2 years and 20 days of active service with 204 lost days.

	h.  Order 194-39 dated 6 October 1988 was amended on 11 April 1990 as follows:  So much of subject orders pertaining to the applicant, as reads “XXX-XX-XXXX” is amended to read “XXX-XX-XXXX”.

	i.  DD Form 215 dated 9 April 1990 shows item 3 (Social Security No.) changed to read “XXX-XX-XXXX.

4.  There was no evidence of any permanent profile in the applicant’s records.

5.  The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation.

6.  In the processing of this case, a medical advisor opinion, dated 20 May 2019, was received from the Army Review Boards Agency Medical Advisor.  The advisory official stated that a review of the applicant’s electronic Veteran Administration record (JLV) indicates that the applicant is not service connected.  Based on the available medical record, the applicant net retention standards in accordance with AR 40-501 (Standards of Medical Fitness).  There is no evidence to suggest the applicant was limited from performing the army physical fitness test or his duties as a Parachute Rigger.  Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant’s records to Integrated Disability Evaluation System (IDES) for consideration of military medical retirement is not indicated at this time.  In addition, there are no medical or behavioral conditions that would support a change in the character of the applicant’s discharge.

7.  The applicant was sent a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

8.  By regulation 635-200 (Personnel Separations – Enlisted Personnel), a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duty executed.

9.  By regulation 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.

10.  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.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  Based upon the findings of the medical advisory and a lack of rebuttal submitted to those findings on behalf of the applicant, the Board concluded that the characterization and the narrative reason for separation currently on the DD Form 214 was accurate and correct.

Additionally, the applicant’s request to correct his social security number was already corrected on a previously published DD Form 215; therefore, the Board recommended denying the applicant’s requested relief.

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.  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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets for the basic authority for the separation of enlisted personnel.

   a.  Paragraph 3-11 (Bad Conduct Discharge Certificate), a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duty executed.
   
   b.  Paragraph 3-7a (Honorable Discharge), an honorable discharge is a separation with honor.  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 1-9 (General Discharge), a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

3.  AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.

	a.  Chapter 3 
(Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB).  

4.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20160016459


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