ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170018326


APPLICANT REQUESTS: an upgrade his general, under honorable conditions discharge (GD) to an honorable discharge (HD) due to medical reasons.

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)
* letter from the Department of the Veterans Affairs
* 3 letters of support
* medical documents
* letter from the Town of Rowley Police Department 
* letter from Dr. K

FACTS:

1.  The applicant states he injured his left shoulder in a field exercise in July 2014, and was seen by multiple doctors before it was decided that he needed surgery due to two torn biceps heads and buildup of disease and degenerative arthritis on his labrum.  This resulted in constant and excruciating pain before and after surgery.  After recovering from surgery, he was prescribed narcotics for the pain although he had discussed his past issues with pain medication with the doctor.  He fell back into addiction due to narcotics being prescribed to him.  He then failed a urinalysis test and instead of going before a medical evaluation board (MEB), which was documented and requested by   Dr. C, he was discharged and lost his rank.  His service was characterized as general, under honorable conditions so that he could receive medical benefits.  The two biggest factors in his receiving a GD was a MEB had already been initiated and his injury was sustained while on active duty.  Since his release from active duty, he has completed a program designed to maintain sobriety due to opiates and pain medications.  An upgrade of is discharge would be beneficial for obtaining gainful employment with a law enforcement agency if he is able to recover from his shoulder injury.  His shoulder disability and injury is and will be going on for the rest of his life.  He is 28 years old and needs a full shoulder replacement.

2.  The applicant provides a Standard Form 600 (Chronological Record of Medical Care), dated 29 June 2015, which shows Dr. C (Tripler-Shafter Orthopedic Clinic)
noted the applicant was unable to perform his military activities and recommended a MEB.  He further noted the applicant should follow up with his primary care doctor to have the MEB initiated and that the applicant should follow up as needed in the orthopedic clinic.  

3.  There is no evidence and the applicant does not provide any evidence showing a MEB was initiated or completed.  The applicant’s complete medical records were not available for review.  

4.  The applicant’s record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge process.  However, his record contains a memorandum from the separation authority approving the request for discharge in lieu trail by court-martial.  The memorandum states:
     a.  The applicant was to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with a service characterization of General. The court-martial charges pending against the applicant will be withdrawn and dismissed effective upon date of separation.
     b.  The applicant will be discharged without separation physical or mental examination unless written request for such is submitted. No written wavier is necessary.  In the event that either a physical or mental examination is requested, separation will not be delayed for completion of the examination, and the examination may be completed at VA facilities after discharge.
     c.  The applicant will be reduced to the lowest enlisted grade and the applicant will not be transferred to the Individual Ready Reserves.
5.  The applicant’s record also contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 10 November 2015, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and he was issued a GD.  He completed 2 years, 6 months, and 11 days of net active service this period.  He was awarded or authorized the Army Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.
 6.  On 7 March 2018, the ABCMR obtained an advisory opinion from a medical advisor with Army Review Boards Agency (ARBA), who states, in part, the applicant requested separation under the provision of Army Regulation 635-200, chapter 10 - In Lieu of Trial by Court Martial.  Physical Disability Evaluation System (PDES) processing, i.e. MEB/physical evaluation board (PEB), was not indicated in these circumstances. Additionally, the applicant non-disclosed a significant existed prior to service (EPTS) history of drug dependence and inpatient psychiatric/detox hospitalization as well as non-disclosed EPTS shoulder/back injuries (age 22y).  Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

7.  On 13 March 2018, the applicant was provided a copy of the advisory opinion for comment or rebuttal.  He did not respond.
 
8.  The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.  

9.  Army Regulation 635-40 (Standards of Medical Fitness) 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.  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.

10.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities.  The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  
11.  The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance.



BOARD DISCUSSION:

1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests.  The Board discussed the applicant’s record, his statement regarding his medical conditions, the lack of a separation packet, the conclusions of the advising official regarding his EPTS conditions, lack of necessity for an MEB and no evidence of mitigating conditions for misconduct.  The Board determined, based on a thorough review of the evidence, that there were insufficient mitigating factors to consider and that the character of service the applicant received was not in error or unjust.    

2.  After reviewing the application and all supporting documents, the Board found that relief was 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.
  


	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  Army Regulation 635-200 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 provides 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 UOTHC is normally considered appropriate.

2.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability.  
     a.  The disability system assessment process involves two distinct stages:  the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 
     b.  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.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.
3.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities.  The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  
4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  

	a.  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, Boards 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.  

	b.  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.

5.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.


ABCMR Record of Proceedings (cont)	 AR20170018326
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