ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: January 14, 2020 DOCKET NUMBER: AR20160016863 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3647-1 (Clinical Record Cover Sheet) * Special Orders (SO) Number 211 * DA Form 3686-22 (Statement for Enlistment) * Department of Veterans Affairs (VA) Forms: * 10-10 (Application for Benefits) * two 10-1000 (Hospital Summary) * 7131 (Exchange of Beneficiary Information and Request for Administrative Adjudication Action) * his birth certificate * mother’s death certificate and medical documentation 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 (ABCMR) 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 signed a DA Form 3686-22 that was completely ignored and disregarded his option. This created years of great depression, anger, disappointment, and destroyed all of his hope. His application should be considered because the error or injustice of his discharge burdens and kills him inside. He made a promise to his mother on her death bed. The applicant provided his: * DA Form 3647-1, dated 12 January 1973, stating he was diagnosed with frost bite of both hands and feet and allegedly the injury incurred while on a firing range on 10 January 1973 * SO Number 211, dated 17 October 1973, assigning him to the Fort Hood Basketball Team * DA Form 3686-22, dated 30 April 1974, stating he was reenlisting for his present duty station * VA Forms: * 10-10, dated 28 October 1976 (Self Explanatory) * 10-1000 showing he was hospitalized from 29 March to 20 April 1977 and diagnosed with Paranoid Schizophrenia * 7131, dated 13 May 1981, completed at the time of his admission to a VA hospital * 10-1000 showing he was hospitalized from 4 to 28 May 1981 for Paranoid Schizophrenia * his birth certificate showing he was born on * mother’s death certificate and medical documentation showing his mother died on ## X___ #### and she was under hospice care 4. Review of the applicant’s service records show: a. He enlisted in the Regular Army (RA) on 3 July 1972 and he held military occupational specialty 63B (Wheel Vehicle Mechanic). He was honorably discharged on 29 April 1974, for the purpose of his immediate reenlistment. b. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 9 months, and 21 days of active service. He reenlisted in the RA on 30 April 1974. c. On 31 July 1974, he was placed on leave. On 30 August 1974, he failed to report to his new unit. On 24 September 1974, he was charged with desertion. On 2 September 1981, notification of discharge was sent to home of record address but was returned undeliverable. d. The complete facts and circumstance surrounding to the applicant’s separation are not available for the Board to review. However, his available records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged on 14 October 1982. This form also shows he: * completed 4 months of active service * had 2,065 days of time lost * was discharged under the authority of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of Misconduct – Desertion, with an under other than honorable conditions discharge * was awarded/authorized the: National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar (M-16) e. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. f. An advisory opinion was received from the Psychologist, Army Review Boards Agency (ARBA), on 2 December 2019, in the processing of this case. The ARBA medical advisor reiterated the applicant’s period of service and stated: (1) Review of the electronic VA medical record indicated the applicant did not have a service-connected disability rating. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, it was possible that the applicant was in the prodromal phase of schizophrenia at the time his desertion. His military evaluations indicated he was performing well with no occupational impairment. It was possible that finding out his reenlistment contract to stay with his original unit was not being honored could have triggered some prodromal symptoms and thus should be considered a mitigating factor for his misconduct. (2) However, his first hospitalization was 3 years after he deserted and there was no indication that he failed to meet retention standards at the time of his desertion. It was recommended his case be considered for a military medical retirement. The delay in his discharge was due to an administrative lapse. He never returned to military control after his desertion on 30 August 1974, even though his discharge was not completed until 14 October 1982. g. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. In his response, received on 26 December 2019, the applicant stated the main reason he wanted to remain at Fort Hood was to attend Texas Central College to fulfil his dream of becoming an officer. Why did the authorities not come for him? He waited with fear and embarrassment for years. Why was his record not checked to show he was in jail? He wanted to be the best Soldier that he could. He realized he made a bad life-changing incorrect decision and that reckless choice made his life a living hell. He prays for forgiveness, understanding, and fairness to end this battle in his head and free his mind from this great burden. 5. By regulations: a. AR 635-200, action will be taken to separate a member for misconduct when it is 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. When a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. c. AR 40-501(Standards of Medical Fitness), a Soldier may be discharged from the Army for not meeting retention standards. 6. In reaching its determination, the Board can consider the applicants 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 warranted. Based upon the applicant-provided medical records, as well as the findings and recommendations of the medical advisory, the Board recommended that the applicant’s records be sent to the Office of the Surgeon General for review in order to determine whether a medical retirement is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be forwarded to the Office of the Surgeon General for review, consideration and determination as to whether the applicant’s narrative reason for separation should be changed to a medical retirement. 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 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 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel. The regulation stated in: a. Chapter 14 – the established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a – an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b – 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. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It stated the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 4. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160016863 5 1