ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170011382 APPLICANT REQUESTS: * reconsideration of her earlier request for an upgrade of her under other than honorable conditions discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Resume * College Transcripts * Police Background Check * DD Form 2648 (Pre-Separation Counseling Checklist for Active Component Service Members) * Orders 157-0681 (Discharge Orders) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR20080015930 on 24 February 2009. 2. The applicant states she has acquired more evidence for the Board to consider her application. a. She believes this is an error because she sought medical help. She injured her back (two herniated discs) and sought treatment while at Fort Lee. Dr. X____ immediately gave her pain medication and bedrest but it did not help. She had x-rays and MRI done which showed the two discs herniated. She sustained this injury during basic training and she did physical therapy which did not help. a. b. Doctor W kept prescribing her Vicodin and regular muscle relaxers. She went on convalescent leave and saw a chiropractor which helped her somewhat. Later, she returned to Fort Lee and told Dr. X____ she was ill from the pain medication and he said there was nothing else he could do for her. He sent her to go through a medical board. c. She had become dependent on the pain medication. While at Fort Lee she went through spells of depression, it could have been due to the Vicodin and the constant pain she was in. At this time she was not taking any pain medication and she went home for Christmas break and did not return. She felt she had no other choice she began to see a doctor and rested back home. d. She regrets this decision but she felt she had no choice. She continued to have issues with her back which she knows will not ever go away. She began treatment with the Department of Veterans Affairs (VA) and now she has a service-connected disability with them. It took her years to apply because due to her discharge she was not able to receive any help from the VA. e. She wants the Board to know that she has no criminal record and that she has continued to contribute to society. She completed her Bachelor's and Master's Degrees. She has volunteered at the American GI Forum in Houston, TX since 2008. She has worked as a VA Advisor for Houston Community College and Lone Star College. She is currently an academic advisor. In some form or fashion she would like to have a career in a government agency and work with Veterans or Department of Defense. She was turned down by the Central Intelligence Agency because of her discharge. It has been difficult and heart wrenching to carry the burden of this stigma with her other than honorable discharge. f. Who she was at 19 years old is not who she is at 31. Her personal character was not mature when she joined the Army. As an adult she understands the value of commitment and selflessness. She had no other adverse misconduct while she was on active duty, in the contrary she was a good Soldier. She plans to apply for a Doctorate in Philosophy program soon where her dissertation and research will be over veteran's higher education and how we can better assist them. Please take her accomplishments and her character as an adult and not this sole incident which she did because of the pain and mental state she was in. 3. The applicant provides her resume, college transcripts and police background check that display her good character. 4. A review of her service records shows: a. She enlisted in the Regular Army on 7 June 2005. a. b. On 4 January 2006, she departed her unit in an absent without leave (AWOL) status and on 3 February 2006, she was dropped from the rolls as a deserter. She returned to military control on 6 March 2006. c. Court-martial charges were preferred on the applicant on 9 March 2006. Her DD Form 458 (Charge Sheet) indicates she was charged with one specification of being AWOL from 4 January 2006 to 6 March 2006. d. On that same date an AWOL/Deserter Returnee Interview Report was completed by the applicant where she stated she went AWOL due to family and personal problems and she reached out to her chain of command and a Congressman prior to going AWOL. e. On 10 March 2006, she consulted with legal counsel. After consulting with counsel, she requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations). She acknowledged: * maximum punishment * she was guilty of the charge against her or of a lesser included offense * she does not desire further rehabilitation or further military service * if her request for discharge was accepted, she may be discharged under conditions which are other than honorable and furnished an Under Other Than Honorable Discharge Certificate * she would be deprived of many or all Army benefits * she may be ineligible for many or all benefits administered by the Veterans Administration * she may be deprived of her rights and benefits as a veteran under both Federal and State law * she may expect to encounter substantial prejudice in civilian life because of the under other than honorable discharge * she elected not to submit a statement on her own behalf and did not desire a physical evaluation prior to separation f. Consistent with the chain of command recommendation, the separation authority approved the applicant's request for discharge on 17 May 2006, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, and directed that she be discharged under other than honorable conditions. g. She was discharged from active duty on 7 June 2006. Her DD Form 214 shows she was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions discharge. She completed 9 months and 28 days of active service with lost time from 4 January 2006 through 6 March 2006. a. h. The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering her case on 22 August 2007, and 2 March 2011, denied her request. i. She also appealed to the Army Board for Correction of Military Records (ABCMR) but, on 24 February 2009 her request was denied. 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 12 December 2017. The medical advisor opined: a. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. b. There was no medical indication for Physical Disability Evaluation System processing for this applicant. The applicant's complete lack of response to conservative treatment measures for mechanical low back pain (with no significant pathology on x- ray or MRI lumbar spine) and severe reported symptoms were incongruent with clinical history and physical findings. The applicant's reported severe back pain symptoms appeared to completely resolve with the initiation of medical evaluation board processing in early November 2005. The applicant did not appear to require any medical treatment for back pain or other conditions after AWOL during the three months prior to chapter 10 separation. c. The applicant's medical conditions were duly considered during medical separation processing. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a response on 15 December 2017. She did not respond. 7. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. By regulation, a Soldier 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. The Soldier’s written request will include an acknowledgement that he/she understands the elements of the offenses/s charged and is guilty of the charge/s or of a lesser included offense/s. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. 9. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 1. 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 service completed prior to the misconduct, as well as the medical advisory’s finding that no evidence of a medical disability or condition which would support a change to the character or reason for the 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. 1535874 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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-7b (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. c. Chapter 10 of that regulation states a member who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a member who is discharged for the good of the service. a. 4. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states that 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. The mere presence of 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 their office, grade, rank, or rating. 5. AR 40-501 (Medical Services - Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities. 6. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 7. 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 on the basis of 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 1. 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.