IN THE CASE OF: BOARD DATE: 22 May 2020 DOCKET NUMBER: AR20160018852 APPLICANT REQUESTS: a change of his under than honorable conditions discharge to an honorable or a medical 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 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 is attempting to receive some assistance from the Department of Veterans Affairs for his foot problems, depression, and hearing. The tanks, walking, and running have resulted in pain in his feet, legs, and back when he stands for long periods of time. He also has a bad case of memory loss, is easily stressed and distracted, and unable focus on more than one thing at a time. 3. Review of the applicant’s service records show: a. He enlisted in the Regular Army on 25 October 1993. He held military occupational specialty 13B (Cannon Crewmember). He was promoted to E-2 on 15 April 1994. b. On 21 February 1995, court-martial charges were preferred against him for two specifications of being absent without leave (AWOL) from 2 to 6 January and from 17 January to 7 February 1995. c. On 14 March 1995, he was convicted by a summary court-martial for the AWOL offenses. The court sentenced him to a reduction to pay grade E-1 and confinement for 21 days. He was placed in confinement on 15 March 1995. d. On 12 May 1995, court-martial charges were preferred against him for one specification each of: * violation of a lawful regulation by wrongfully storing a pistol and ammunition in his room on 9 May 1994 * unlawfully striking a female person on the arms and in the face with his open hand fists on 6 May 1995 * attempting to willfully and wrongfully seize, carry away, and hold a person against her will on 9 May 1995 * commit an assault upon a female person by pointing at her in the area of her chest, with a dangerous weapon, to wit: a loaded 9 millimeter pistol * wrongfully communicate to a female person a threat to injure by saying to her, "If I see you on the streets I will hurt you," or words to that effect, on 9 May 1995 e. On 13 July 1995, after consulting with legal counsel, he requested a discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court- martial). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he may be deprived of many or all Army benefits * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life * he waived his rights and elected not to submit a statement in his own behalf f. On 13 July 1995, the separation authority approved his discharge and directed the issuance of an under other than honorable conditions discharge. g. He was discharged accordingly on 14 July 1995. His service was characterized as under other than honorable conditions. His DD Form 214 shows he completed 1 year, 5 months, and 22 days of net active service, with time lost from 5 to 10 July 1994, 2 to 6 January 1995, 17 January to 7 February 1995, and 10 May to 13 July 1995. This form also shows he was awarded/authorized the: * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar h. There is no indication he petitioned the Army Discharge Review Board within its 15-year statute of limitations requesting an upgrade of his discharge. i. His records does not contain and he does not provide any evidence or a diagnosis by a military treatment facility of a medical condition that failed retention standards and necessitated his entry into the disability system. j. On 1 February 2019, the Army Review Boards Agency requested him to provide a copy of the medical documents that supported his issue of anxiety, depression, lack of memory and additions medical issues (regarding his hearing, feet, legs, and back). As of 3 April 2016, he had not responded. 4. The Army Review Board Agency (ARBA) Medical Advisor reviewed the case and the case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), and the Interactive Personnel Electronic Records Management System (iPERMS). a. The applicant is applying to the ABCMR requesting that his 14 July 1995 discharge from the Army, characterized as under other than honorable conditions, be upgraded to honorable. He claims to require medical help with multiple medical conditions. He does not relate any of these conditions to his military service nor does he provide a reason behind his request for a discharge upgrade other than the requirement for medical care. b. The ABCMR’s Record of Proceedings details the applicant’s multiple encounters with and convictions sustained under the Uniform Code of Military Justice. It notes that on 13 July 1995, after consulting with legal counsel, he requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200. He was counseled on and acknowledged the consequences of this action, including the potential that “I may be ineligible for many or all benefits administered by the Veterans Administration, and that I may be deprived of my rights and benefits as a veteran under both Federal and State law.” c. In a memorandum dated 1 February 2019, the ABCMR requested the applicant “provide a copy of the medical documents that support your issue of anxiety, depression, lack of memory and additional medical issues.” It appears the applicant has made no such submission as there are no medical documents within the electronic case file nor were any found in the above referenced electronic data bases. d. Based on the information currently available, the Agency Medical Advisor is unable to make a determination on the worthiness of the applicant’s request for a re- characterization of his discharge from the Army. If the applicant submits medical documentation, specifically medical documents that support his medical condition and which are linked to his time in service, an Agency Medical Advisor will certainly reevaluate his request. 5. By regulations: a. AR 635-200, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service; however, the separation authority may direct a General Discharge Certificate, if such is merited by the Soldier’s overall record during the current enlistment. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness) and awarded a disability rating assigned by the Army’s disability system. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal 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 reason for his separation. The Board considered the conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of medical records to support his claim, post-service achievements, or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 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, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’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. b. Paragraph 3-7b (General Discharge) – a general discharge was 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. c. Chapter 10 – an individual who had 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. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustained or aggravated physically-unfitting disabilities must meet the following line-of- duty criteria to be eligible to receive retirement and severance pay benefits. The regulation stated: a. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it was 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. b. The VA Schedule for Rating Disabilities (VASRD) was primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting condition(s) from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 4. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness was made, the Physical Evaluation Board rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 5. Title 10, U.S. Code, section 1201 provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160018852 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1