ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170017655 APPLICANT REQUESTS: a medical discharge instead of an under other than honorable conditions in lieu of trial by court-martial. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * applicant self-authored statements (hand written and typed) * character statement, DG, not dated * character statement, X___, dated 13 November 2017 * letters of acknowledgement, Pastor X___, dated 13 May 2002 and 7 June 2002 * church course completion certificates, dated 22 March 2000, 25 March 2001, and 5 August 2002 * service medical documents (10 Pages) * DD Form 214 (Report of Separation from Active Duty), dated 14 March 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 October 1983 * Department of Veterans Administration (VA) medical documents (5 pages) 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 in a self-authored statement the following details: a. He enlisted into the Army, given a complete physical, and passed it. He served 3 years in Spangdahlem, Germany, U.S. Army Europe. He served his 3 years and received an honorable discharge at the rank of specialist/E-4. In March 1979, he reenlisted for 4 years. He states, after 1 1/2 years into his assignment, he started experiencing pain in his groin area, went to sick call, was examined at least 6 times, and was informed by a military doctor that he should have never been assessed into the Army. He met with a panel of 8 officers of various ranks from the 10th Feld Artillery Group that informed him that he did not belong in the Army, but they were not going to release him. b. He was sent to several assignments prior to being assigned to Seoul, Korea because his former command did not want to deal with him. He decided to go absent without leave (AWOL). He acknowledged it probably was not the right thing to do at the time and he is not proud of the decision, but did not feel he was being treated fairly by his leadership. He expressed he loves his country, served active duty two times, and was not supposed to be in the Army. He adds he is not a bad person and requests to be given the right discharge of nothing less than an honorable. c. He has worked for the Federal Government, U.S. Mint, and VA hospitals in San Francisco, CA and Chicago, IL. He has made earlier attempts to get his character of service upgraded but has been unsuccessful. He believes his reenlistment was a total mess up. He was not sent to formal school training for the 13B MOS, and considers to have had a broken contract. He should have been discharged for medical reasons. 3. The applicant provided: a. Character statement from Mrs. X___, who describes the applicant as a wonderful person, a God-fearing man who puts others before himself, and has a generous heart. Mrs. DG also added the applicant always tries to be there for others when needed. He is further described as a fair and honest person. She feels the applicant’s discharge should be upgraded because he served proudly for 3 years and reenlisted to serve even though he should have never been in the Army. b. Character statement from Ms. X___, a friend of the applicant, who describes the applicant as one with a high degree of integrity, responsibility and kindness. He was further described as trustworthy and dependable, with good judgement and Christian outlooks that ensured a close relationship. c. Character statement from Pastor X___, a mentor/friend of the applicant, who wrote two letters acknowledging the applicant’s commitment to family. The applicant attained the title of “Spiritual Father” for being a role model for his family, his church, and his community. d. Three course completion certificates from “The Men’s Ministry of the Apostolic Church of God” were provided which show the applicant completed religious studies in “Discipleship: The Servants Approach,” “Paths of Leadership: The Servants Approach,” and “What Makes a Man a Spiritual Man.” e. Ten pages of medical documentation (some with no date(s) found, others with dates ranging from 20 August 1980 to 18 September 1980) were provided by the applicant to validate he had medical issues, documented by medical professionals, related to the urogenital region of his body. f. Five pages of medical documentation from the VA supports the applicant completed several follow up appointments in the Urology department related to the medical issues addressed in his military medical documents. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 August 1976 and attained the rank of specialist four (SP4)/E-4. b. He was honorably discharged on 14 March 1979 for immediate reenlistment. His DD Form 214 for this period of service shows he was credited with 2 years, 6 months and 28 days of active service. He reenlisted in the RA on 15 March 1979. c. On 8 February 1980, he accepted nonjudicial punishment under the provisions of Article 15 for being absent from his unit area (Headquarters and Headquarters Battery, 212th Field Artillery Group, Fort Sill, OK, from 1 to 4 February 1980. His punishment consisted, in part, of reduction to private first class (PFC)/E-3. d. On 2 October 1980, he was reported AWOL and on 3 November 1980, he was dropped from the rolls as a deserter. He returned to military control on or about 19 September 1983. e. DD Form 458 (Charge Sheet), dated 29 March 1983, shows court-martial charges were preferred against the applicant for one specification of being AWOL from 2 October 1980 to an unknown date. f. The applicant’s record was void of a separation packet and is not available for review with this case. However, his service record contain: (1) Orders 265-24, dated 22 September 1983, from Headquarters US Army Field Artillery Center and Fort Sill, assigned the applicant to the Personnel Control Facility, Fort Sill, Fort Sill, OK on 20 September 1983. (2) Orders 292-361, dated 19 October 1983, from Headquarters US Army Field Artillery Center reduced the applicant in rank to PVT/E-1 on 14 October 1983. (3) Orders 292-372, dated 19 October 1983, from Headquarters, US Army Field Artillery Center reassigned the applicant to the US Army Separation Transfer Point for separation processing on 26 October 1983. (4) DD Form 214 that shows the applicant was discharged from active service on 26 October 1983 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Separations), chapter 10, for the good of the service in lieu of court-martial. His DD Form 214 also shows his service was characterized as under other than honorable conditions. He completed 1 year, 7 months, and 25 days of active service during this period and he had lost time from 2 October 1980 to 18 September 1983. 5. A medical advisory opinion was received from the Army Review Boards Agency (ARBA) in the processing of this case. The Agency psychiatrist was asked to review the behavioral health and physical aspects of this case and provided the following: a. Regarding review of the behavioral health (BH) aspects of this case, the review of available documentation indicates that there is no evidence the applicant suffered from a BH disorder while on active duty. b. Regarding review of the physical health aspects of this case: (1) The medical documentation provided by the applicant clearly indicates that he has an atrophic and/or missing left testicle. He is correct regarding his contention that this is a disqualifying condition which does not meet accession standards In accordance with AR 40-501 (Standards of Medical Fitness). However, while this condition does not meet accession standard, it does meet retention standards according to Chapter 3 of AR 40-501. The fact that the applicant was able to complete 4 years of active duty with no complaints related to his absent and/or atrophic left testicle indicates that this physical problem did not preclude successful performance of duty. (2) Additionally, review of the medical records indicates that the applicant’s medical complaints were not related to his lack of a left testicle, but rather, to the pain he was having in his right testicle. The medical documentation indicates that the applicant was in the process of being referred to Urology for evaluation and possible surgical treatment of his right testicular pain. However, the applicant went AWOL before this evaluation could take place. (3) The Agency psychiatrist opined based on the information currently available, there is insufficient evidence to support the applicant’s contention that he had a medical condition while on active duty which would warrant a discharge upgrade and/or medical disability/retirement. 6. The applicant was provided a copy of this advisory opinion on 22 December 2017 to give him an opportunity to submit a rebuttal or any comments. He did not respond. 7. AR 40-501, in effect at the time, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: * Significantly limit or interfere with the Soldier’s performance of their duties * May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service * May compromise the health or well-being of other Soldiers * May prejudice the best interests of the Government if the individual were to remain in military service 8. By regulation, conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 9. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after changes have been preferred and must include the individual’s admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that there is insufficient evidence to support the applicant’s contention that he had a medical condition while on active duty which would warrant a discharge upgrade and/or medical disability/retirement, as well as the applicant failing to provide a rebuttal to those findings, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s narrative reason for separation or the characterization of service. 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 Separations), sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. AR 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in military service. 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. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 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) AR20170017655 6 1