ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20160016855 APPLICANT REQUESTS: Reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to a general discharge, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement dated 18 June 2013 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 AR20120022879 on 1 August 2013. 2. The applicant states he understood he would be medically discharged from the service due to his knee injury. However, when he was applying for benefits at the Department of Veterans Affairs (VA), he found out his discharge characterization of service was under other than honorable conditions. The VA advised him to request a discharge upgrade. a. He does not clearly recall the events that led to his discharge. In his military record there are allegations he recklessly drove a military vehicle. He remembers he was struggling to keep up with a vehicle in front of him on a winding road. He had an accident while driving the military vehicle that was not his fault. He recalls receiving an Article 15 (nonjudical punishment) under the provisions of the Uniform Code of Military Justice (UCMJ) for this incident. He had no recollection that this accident led to his discharge until he applied for VA benefits. b. He also has no recollection of going absent without leave. He recalls being a little late getting back to base, but he does not recall getting into trouble for it. c. What he vaguely recalls are discussions with his company commander concerning his inability to perform his military duties due to his knee injury. He had physical profiles for light duty and was personally discouraged due to his medical condition. He knowns his company commander explained to him he could be honorably discharged from the service due to his medical condition. It was quite a surprise to him when he learned of his under other than honorable conditions characterization of service. He concludes saying his characterization of service is not proportional to his total quality service. 3. On 23 March 1965, he was inducted into the Army of the United States. He was awarded military occupational specialty 72B (Communications Center Specialist). He was advanced to the rank of specialist four/pay grade E-4. 4. On 22 March 1967, he was honorably released from active duty upon the completion of his 2-year period of inducted service. He received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) documenting his service. It shows he served in the Republic of Korea for 1 year and 1 month. There are no records showing he served in the Republic of Vietnam. 5. After an extended break from military service, he enlisted in the Regular Army on 21 February 1975. 6. A review of his record shows he received six temporary physical profiles from the military post orthopedic clinic during the period from 3 November 1976 to on or about 24 May 1977. Each written profile shows he had a temporary "3" rating for his lower extremities due to a torn cartilage in his right knee. An orthopedic note documents the applicant’s injury was incurred in 1969 as a result of a civilian motorcycle accident. (He was not on active duty at the time.) 7. On 22 February 1977 he accepted nonjudicial punishment (NJP) for being absent from his unit on 14 February 1977 from 0630 hours to approximately 1500 hours. His sentence included reduction to private first class/pay grade E-3 which was suspended for 30 days. 8. On 9 May 1977 court-martial charges were preferred against him for operating a 2 1/2-ton military truck in a reckless manner while drunk on or about 26 March 1977. He ran off the road thereby causing injury to Soldiers who were sitting in the rear of the truck. There are numerous sworn statement attached to the court-martial charge sheet including from a captain who under oath stated there were 21 Soldiers riding in the bed of the truck who were returning from night training and going to the barracks. He was in the convoy lead vehicle. He noticed the truck was not in the convoy and turned around to search for it. He came upon it and saw it was off the road. There were Soldiers who required medical attention and evacuation. When he spoke to the applicant he smelled alcohol on the applicant’s breath. When the military police arrived, he informed them of his observation that the applicant was under the influence of alcohol. The applicant’s actions were a violation of Article 111, UCMJ. He was not offered NJP under Article 15, UCMJ for this offense. 9. On 16 May 1977 he voluntarily requested, in writing, a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to his request. He further acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. a. He further acknowledged he understood that if his discharge request were accepted, he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate. He acknowledged that he understood that 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State law. b. He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to an under other than honorable conditions discharge, of the effects of his request for discharge, and the rights available to him. He waived his rights in conjunction with this consultation. c. He submitted a statement on his own behalf. He stated he had enlisted for 4 years and reenlisted for a reenlistment bonus. He had received NJP once for AWOL. He was pending charges for violating Article 111, UCMJ, for reckless driving. He stated, in effect, he must get out of the Army because his requests for a hardship discharge were denied three times. He stated if he had to go back to duty he would do something crazy like go AWOL or hurt somebody, as he couldn't work in the Army with the problems he was having. He acknowledged that he fully understood that by being discharged with anything other than an honorable discharge he would lose all benefits to include education and training, loans, and unemployment compensation. He stated that he would accept a discharge under other than honorable conditions to get out. 10. On 19 May 1977 a medical doctor authenticated a DA Form 2496 (Disposition Form) stating the applicant was physically examined on 13 May 1977 and found qualified for release from active duty. He provided the applicant with a physical profile rating of all "1's" indicating the applicant had no physical or behavioral health limitations under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). 11. On 25 May 1977, he underwent a behavioral health assessment conducted by a medical doctor. The medical doctor found the applicant’s behavior was normal, fully alert, and orientated to time and space with a good memory. His thought content was within the normal range with no significant mental illness. He was mentally responsible and able to distinguish right from wrong having the ability to adhere to the right. He had the mental capacity to understand and participate in board proceedings. Finally, the medical doctor determined the applicant met the retention standards prescribed in Army Regulation 40-501, chapter 3. 12. On 26 May 1977 the applicant's commander recommended his discharge. His commander stated the applicant was pending a special court-martial for operating a military vehicle while under the influence of alcohol causing an accident and injuring fellow Soldiers. He further stated the applicant's performance of duty had been erratic and substandard. He had attempted to avoid reassignment to Korea by submitting requests for hardship discharges. All requests had been disapproved by the Department of the Army for insufficient justification. He surmised it was unlikely further rehabilitation would produce positive results. 13. On 6 June 1977 the separation authority approved the applicant’s request for discharge and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate. Concurrently, he reduced the applicant to the lowest enlisted rank and pay grade of private/E-1. 14. On 14 June 1977 the applicant was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under other than honorable conditions. He completed a total of 4 years, 3 months, and 24 days of net active service with 12 days of time lost under the provisions of Title 10, U.S. Code, section 972. 15. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 16. On 1 August 2013 after reviewing the evidence of record, the Board denied his request for a discharge upgrade citing there was no evidence of a probable error or injustice in his separation proceedings. 17. On 18 December 2019, the Army Review Boards Agency medical advisor rendered an advisory opinion concerning the applicant’s contention he should have been medically separated for his right knee condition. The medical advisor reviewed his military service treatment records, personnel records and his VA records through the Joint Legacy Viewer. Based on the available evidence of record including the guidance for liberal consideration, the applicant did not have a mitigating medical or behavior health condition at the time of his offense which led to his separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. a. He was seen multiple times for right knee torn cartilage/meniscal tear during his second enlistment period. He had serial temporary profiles from 3 November 1976 to 23 June 1977. A level "3" profile is for defects or impairments requiring significant restriction of use. On 19 May 1977 he was found qualified for release from active duty. He was showing progress during his orthopedic treatment and his exercise tolerance was increasing showing he could run a short distance. There is no evidence his medical condition did not meet medical retention standards under the provisions of Army Regulation 40-501 requiring his entry into the disability evaluation system. b. His VA records show he has a combined service-connected disability rating of 80 percent for major depressive disorder (70 percent), migraine headaches (30 percent), tinnitus (10 percent), and impaired hearing (10 percent). During an examination, he reported he twisted his right knee while running an obstacle course in 1976. He was diagnosed with depression which was related to personal financial stresses brought on by an impairment to work due to an injury from a car accident in 2012. c. There were no behavioral health conditions documented in his service treatment record nor at the time of his administrative separation processing. 18. On 5 January 2020, the applicant was sent a copy of the medical advisory opinion for his review and response in compliance with Title 10, U.S. Code, section 1556. He did not respond or submit a rebuttal statement within the prescribed time period. 19. Army Regulation 635-200 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 Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. By submitting such a request for discharge, a Soldier would acknowledge guilt of the charge(s) against him or her or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate. They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Veterans Administration; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws. They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board noted that the applicant was pending a court-martial for driving a military vehicle while drunk and in so doing injured another Soldier. The Board also noted that he had legal counsel, that he voluntarily requested discharge under the provision of Chapter 10, for the good of the service – in lieu of trial by court-martial, that he made a statement that he must get out of the Army, that he acknowledged his understanding that by requesting discharge, that he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge, and that he could receive a discharge under other than honorable conditions. 3. The Board noted the medical review of the applicant’s records that at the time he requested voluntary discharge, he had a level "3" profile for his knee but there was no evidence his medical condition did not meet medical retention standards under the provisions of Army Regulation 40-501 requiring his entry into the disability evaluation system. 4. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 5. After reviewing the application and all supporting documents, the Board found that relief is not 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. 9/22/2020 X CHAIRPERSON 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 5, Section II (Secretarial Authority) provided for the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 2. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation program designator (SPD) codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD KFS is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 3. Army Regulation 40-501 (Standards of Medical Fitness), 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. For lower extremities, an amputation such as the loss of toes precluding the ability to walk or run without a perceptible limp; any loss including foot, ankle, below the knee, above the knee, hip or femur; internal derangement of the knee including residual instability following remedial measures, if more than moderate in range of motion degrees as measured by a goniometer. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//