ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20160016537


APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Report of Separation from Active Duty)

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 because of an ongoing medical condition that hampers him to this present day, made worst by Army denial, he feels that he is justified in requesting this upgrade.

	a.  He provides a letter, dated 7 September 2018, from one of his doctors helping him in support of his injury claim.  The existing injury to his foot which has caused him tremendous quality of life problems and still exist to this day.

	b.  He provides a letter, dated 4 October 2018, wherein his doctor states the applicant has been evaluated at the Family Health Center for chronic severe foot pain thought to be due to chronic calluses.  A contributing factor to the recurrent calluses may have been the foot injuries that he sustained during his years of active duty in the military.  He has undergone ongoing treatment for his foot calluses/warts with specialist input from podiatry and dermatology, and has ongoing functional impairment due to his pain that requires special footwear as well as assistive devices for ambulation.  This letter is to certify ongoing evaluation and treatment for his chronic foot pain.


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

	a.  He enlisted in the Regular Army on 2 April 1973.

	b.  He accepted non-judicial punishment on/for:

* 2 July 1973, for being absent without leave (AWOL), failing to go at the time prescribed to his appointed place of duty, and failing to obey lawful order
* 10 August 1973, for being AWOL from 6 August 1973 until 10 August 1973, he was reduced to private/E-1
* 14 September 1973, for being AWOL on 10 September 1973
* 5 October 1973, for being AWOL from 18 to 25 September 1973

	c.  On 29 January 1974, DD Form 458 (Charge Sheet), shows court-martial charges were preferred against him for one specification of AWOL from 6 November 1973 until 28 January 1974.

	d.  On 8 February 1974, he consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge.  Subsequent to that, he requested discharge UP of chapter 10, (in lieu of trial by court-martial) Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel).  He also acknowledged the following:

* he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State law
* understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

	e.  His immediate commander recommended discharge UP of chapter 10 of 
AR 635-200 with an Undesirable Discharge Certificate.

	f.  On 22 and 27 February 1974, his chain of command was consistent with the recommended separation.

	g.  On 6 March 1974, the separation authority approved separation for the good of the service.  He directed the applicant be furnished an Undesirable Discharge Certificate and the applicant be reduced to the lowest enlisted grade.

	h.  Standard Form (SF) 88 (Report of Medical Examination), dated 1 February 1974 shows applicant stated he was in good health.  SF 93 (Report of Medical History), dated 14 February 1974 shows applicant stated he is in poor health showing yes on several conditions including strenuous activity on strain on foot and foot operation at 17 years of age.

	i.  On 15 March 1974, he was discharged UP of AR 635-200, chapter 10, with an under other than honorable conditions character of service in the rank of private/E-1.  He served 8 months and 8 days of active service.  The applicant DD Form 214 shows he was discharged under other than honorable conditions on 15 March 1974 under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service. 

5.  On 8 June 1988, the applicant was notified by the Army Discharge Review Board determined the applicant was properly discharged.  The request for a change in the type and nature of his discharge was denied.

6.  On 9 May 2019, the Army Review Board Agency medical advisor rendered an advisory opinion in the applicant’s case.  The advisor stated: 

	a.  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 in accordance with AR 40-501 (Medical Services-Standards of Medical Fitness) prior to separation from the United States Army.  He reported having a foot operation prior to entering the Army at the age of 17.  There are no medical notes during active duty service indicating that his foot was bothering him and on the applicants discharge physical examination the physician reported that he was in good health with no complaints.  There is insufficient records to indicate whether his foot problem had any impact on his military service.

	b.  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 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.  On 9 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a response and/or a rebuttal.  On 29 May 2019, the applicant stated in effect he is 67 years old and his quality of life has been severely diminished over the years because of these proceedings.  One cannot imagine the pain and suffering that he and his family is going through because of this matter.

8.  By regulation AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

	a.  AR 635-40, the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

	b.  AR 635-200, a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

9.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of honorable service completed prior to the misconduct which resulted in the applicant’s separation, as well as the finding of the medical advisory that there are no medical or behavioral conditions that would support a change in the character of the applicant's discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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 Separation – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was 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.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD

4.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  

	a.  Paragraph 3-1 states that the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

	b.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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)	 AR20160016537


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