IN THE CASE OF:  BOARD DATE:  17 August 2020 DOCKET NUMBER:  AR20180004131 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140014202 on 7 April 2015.  Specifically, he requests his undesirable discharge (under other than honorable conditions discharge) be upgraded to an honorable discharge, and his narrative reason for separation be changed to show he was separated by reason of medical disability.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 26 February 2018



FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20140014202 on 7 April 2015.

2.The applicant states there was confusion between Fitzsimmons General Hospital,Fort Leonard Wood Hospital, and Fort Carson.  He had a spinal fusion at Fort LeonardWood Hospital and was told he was unfit for duty and was to be medically discharged.

3.Army Regulation 15-185 currently states a request for a reconsideration will beresubmitted to the Board if there is evidence, including but not limited to any facts orarguments as to why relief should be granted, which was not in the record at the time ofthe Board’s prior consideration.  The applicant's contention constitutes a new argument.

4.The applicant enlisted in the Regular Army on 28 May 1965 and reenlisted on28 May 1966.

5.The applicant accepted nonjudicial punishment (NJP), under the provisions ofArticle 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for theindicated offenses:

.on 26 November 1966, for failing to go to his appointed place of duty after beingordered to do so, on or about 25 November 1966

.on 16 January 1967, for failing to go to his appointed place of duty

.on 6 March 1967, for being found improperly dressed and for not performing hisduties as barracks orderly, on 3 and 6 March 1967

.on 9 March 1967, for willfully disobeying lawful orders from his two superiornoncommissioned officers (NCO) and for failing to go to his appointed place ofduty, on 7 March 1967

.on 1 June 1967, for failing to turn in his vehicle on 29 May 1967 and for failing togo to his appointed place of duty, on 31 May 1967

.on 18 August 1967, for failing to go to his appointed place of duty, on 12 August1967

.on 20 June 1968, for being absent without leave (AWOL) from on or about11 June to on or about 18 June 1968



6.Before a special court-martial on or about 29 January 1968, at Fort Leonard Wood,Missouri, the applicant was found guilty of being AWOL from on or about 14 Novemberthrough on or about 5 December 1967.

7.The applicant had previously provided a copy of a Department of Veterans Affairs(VA) Form 21-6796, dated 16 April 1968, showing he was awarded service-connecteddisability for his back condition.  The decisional document states the applicant had aprevious laminectomy and spinal fusion at age five years.  He now has constant painsince an accident in 1966 after a machine gun fell on his back.  He has radiating paindown both legs with muscle spasms.

8.Before a special court-martial on or about 22 April 1968, at Fort Leonard Wood,Missouri, the applicant was found guilty of willfully disobeying a lawful order from hissuperior NCO, on or about 23 March 1968, and behaving with disrespect towards hissuperior officer, on or about 6 April 1968.

9.Before a special court-martial on or about 6 February 1969, at Fort Carson,Colorado, the applicant was found guilty of being AWOL, from on or about 12 Octoberthrough on or about 5 November 1968 and from on or about 10 November through onor about 30 December 1968.

10.The applicant's immediate commander's notification of initiation of separationproceedings is not of record.

11.After consulting with counsel on 19 February 1969, the applicant acknowledgedreceipt of the notification of proposed separation under the provisions of ArmyRegulation 635-212 (Personnel Separations – Unfitness and Unsuitability), for unfitness.He acknowledged he could receive an under other than honorable conditions (UOTHC)
discharge and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf. 

12.The applicant was afforded a neuropsychiatric examination on 27 February 1969.He was diagnosed with a passive aggressive personality.  The examining psychiatristfound no disqualifying mental defects sufficient to warrant disposition through medicalchannels.  The attending physician found the applicant was mentally responsible, ableto distinguished right from wrong, and to adhere to the right.  Based on the applicant'sattitude and motivation, it was most unlikely that any further rehabilitation or therapeuticefforts would affect any significant improvements in his level of function or in hisattitude.  He stated the applicant could not be rehabilitated to the extent that he could bean effective Soldier and he recommended administrative separation under theprovisions of Army Regulation 635-212 (Unfitness).

13.The applicant's battalion commander recommended approval of the applicant'sdischarge on 5 March 1969.  He noted that the applicant had received four NJPs andthat numerous attempts had been made to rehabilitate the applicant that had all metwith failure.  He had received three special courts-martial, two for being AWOL and onefor various counts of assault, disrespect, and failure to obey a lawful order.  He alsostated the applicant was very positive in stating that he would go AWOL if returned toduty.  He felt the applicant should be discharged as expeditiously as possible.

14.The separation authority approved the applicant's discharge on 13 March 1969 anddirected the issuance of a DD Form 258A (Undesirable Discharge Certificate).

15.The applicant was discharged on 28 March 1969, under the provisions of ArmyRegulation 635-212, by reason of unfitness.  The DD Form 214 (Armed Forces of theUnited States Report of Transfer or Discharge) he was issued shows his service wascharacterized as UOTHC.  His DD Form 214 further shows:

.he was discharges in the rank/grade of private/E-1

.he had two years and seven days of service this period and one year of priorservice

.he had 202 day of lost time

.no indication of any acts of valor, significant achievement, or service warrantingspecial recognition



16.The Army Discharge Review Board (ADRB) denied his petition for an upgrade ofhis discharge on 16 September 1976.

17.The DoD directed the Services, on 4 April 1977, to review all less than fullyhonorable administrative discharges issued between 4 August 1964 and 28 March1973.  In the absence of compelling reasons to the contrary, this program, known as the
DoD SDRP, required that a discharge upgrade to either honorable or under honorable conditions (general) be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 

18.The applicant's discharge was reviewed under the DoD SDRP and on 29 July 1977,the ADRB informed the applicant that they had elected to upgrade his UOTHCdischarge to an under honorable conditions (general) discharge, effective 6 June 1977.His previous DD Form 214 was voided and a new DD Form 214 was created to reflectthis change.

19.Public Law 95-126 was enacted in October 1978.  This legislation:

a.Denied VA benefits to any former service member who had been AWOL for morethan 180 consecutive days, or who had been classified as a deserter or a conscientious objector. 

b.Required the Service Departments to establish historically-consistent uniformstandards for discharge reviews. 

c.Required the Service Departments to reconsider all discharges previouslyupgraded under the DoD SDRP using these uniform standards.  Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. 

20.In accordance with Public Law 95-126, the ADRB reconsidered the applicant'sdischarge and determined his characterization was warranted in accordance with theDoD SDRP.  Accordingly, a DD Form 215 was issued on 24 August 1978 showing hischaracterization of service warranted under the provisions of the DoD SDRP.

21.The Board has been advised in similar cases that the VA often requires validationor affirmation of DoD SDRP upgrades by the military service corrections boards, in thiscase the ABCMR, in order to authorize the service member VA benefits.

22.Other than the VA decisional document previously provided, the applicant has notprovided and the available record does not contain any documentation of any medicaltreatment for the applicant's back.

23.The Army rates only conditions determined to be physically unfitting at the time ofdischarge which disqualify the Soldier from further military service.  The Army disabilityrating is to compensate the individual for the loss of a military career.  The VA does nothave authority or responsibility for determining physical fitness for military service.  TheVA may compensate the individual for loss of civilian employability.

24.The Army Review Boards Agency (ARBA) Medical Advisor was asked to reviewthis case. Documentation reviewed included the applicant’s ABCMR application andaccompanying documentation, the military electronic medical record (AHLTA), the VAelectronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), theMedical Electronic Data Care History and Readiness Tracking (MEDCHART)application, and the Interactive Personnel Electronic Records Management System(iPERMS).  The ARBA Medical Advisor made the following findings andrecommendations:  The applicant is applying to the ABCMR requesting an upgrade ofhis 28 March 1969 discharge which was characterized as under conditions other thanhonorable.  He claims “Shortly after my Spinal Fusion at Ft. Leonardwood ArmyHospital, I was found to be unfit to continue my duties and was to be MedicallyDischarged.”  The Record of Proceedings outlines the applicant’s military service andthe circumstances of the case and his discharge.  Because of the period of serviceunder consideration, there are no contemporaneous electronic health records.  There isno evidence of any medical conditions or surgical procedures found in the supportingdocumentation.  The only medical document is a neuropsychiatric evaluation completedon 25 February 1969.  The psychiatrist wrote:  “A thorough social history and onepsychiatric interview with this enlisted man fails to reveal any indication of psychosisand also fails to reveal any prominent neurotic symptomatology.  Consequently, there isno reason to process this man through medical channels, and if Command desires toseparate him from the Army it is entirely appropriate that this be done through theadministrative procedures of AR 635-212.”  The psychiatrist diagnosed the applicantwith passive aggressive personality disorder and recommended an administrativeseparation.  A personality disorder is a deeply ingrained, rigid way of thinking andbehaving that results in impaired relationships with others and often cause distress forthe individual who experiences them.  The diagnosis “passive aggressive personalitydisorder” in no longer used clinically.  Previously, people with passive–aggressivepersonality disorder were considered "often overtly ambivalent, wavering indecisivelyfrom one course of action to its opposite. They may follow an erratic path that causesendless wrangles with others and disappointment for themselves."  Characteristic ofthese individuals was an "intense conflict between dependence on others and the desirefor self-assertion."  Although exhibiting superficial bravado, their self-confidence wasthought to often be very poor, and they felt that others reacted to them with hostility andnegativity.  There is no evidence the applicant had any medical condition which wouldhave failed the medical retention standards of chapter 3, AR 40-501 prior to hisdischarge.  Even if such a medical condition had existed at the time, the applicant would
most likely not have been eligible for processing through the Physical Disability Evaluation System.  Paragraph 1-3b(1) af AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 May 1967) notes that this regulation is not applicable to:  “Members charged with offenses for which dismissal or punitive discharge may be adjudged by a court-marital, unless the charges have been referred to a court-martial which cannot adjudge such a sentence.”  At the time of his pre-separation neuropsychiatric exam, the psychiatrist noted of the applicant: “He claims that he has nearly fifteen Articles 15s and that he has three Courts-Martials. He also says that he has been in confinement at the Stockade at least five times.”  Furthermore, there is no evidence that any such condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating; or that any such condition contributed to his multiple violations of the Uniform Code of Military Justice.  Based on the current evidence, it is the opinion of the Agency Medical that an upgrade of the applicant’s discharge characterization is not warranted.    

25.Title 38, U.S. Code (USC), Sections 1110 and 1131, permit the VA to awardcompensation for disabilities which were incurred in or aggravated by active militaryservice.  However, an award of a VA rating does not establish an error or injustice onthe part of the Army.

26.Title 38, Code of Federal Regulations, Part IV, defines the VA Schedule for RatingDisabilities (VASRD).  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge.  As a result,the VA, operating under different policies, may award a disability rating where the Armydid not find the member to be unfit to perform his duties.  Unlike the Army, the VA canevaluate a veteran throughout his or her lifetime, adjusting the percentage of disabilitybased upon that agency's examinations and findings.

BOARD DISCUSSION: 

After review of the application and all evidence, including the applicant’s statement and the ARBA Medical Advisory opinion, the Board found insufficient evidence to grant relief and amend the decision of the ABCMR set forth in Docket Number AR20140014202 on 7 April 2015.  The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, the Medical Advisory opinion and the prior Board determination, and did not find sufficient evidence to grant relief.  The Board agreed with the ARBA Medical Advisory opinion that there is insufficient evidence of a medical condition that would warrant a change in the applicant’s under other than honorable conditions discharge or narrative reason for separation.  The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.  TheBoard agreed that the applicant’s discharge characterization and narrative reason is appropriate due to the applicant’s numerous instances of misconduct that included assault, AWOL, failure to repair, disrespect, and failure to obey a lawful order,
which resulted in the applicant receiving 3 courts-martial and 7 Article 15s.  Based on a preponderance of evidence, the Board determined that there was no error or injustice.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20140014202 on 7 April 2015.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 


X 


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 1201, provides for the physical disability retirement of amember who has either 20 years of service or a disability rating of 30 percent (%) orgreater.

2.Title 10, USC, Section 1203, provides for the physical disability separation of amember who has less than 20 years of service and a disability rating at less than 30%.
3.Title 38, USC, Section 1110 (General - Basic Entitlement) provides that:

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 

4.Title 38, USC, Section 1131 (Peacetime Disability Compensation - BasicEntitlement) provides that:

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 

5.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

6.Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, orSeparation) establishes the Army Physical Disability Evaluation System (PDES) andsets forth policies, responsibilities, and procedures that apply in determining whether aSoldier is unfit because of physical disability to reasonably perform the duties of his orher office, grade, rank, or rating.

a.Provides that the mere presence of an impairment does not, of itself, justify afinding 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating. 

 b.  Provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 
 
 c.  An enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation. 
 
 d.  It further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical or mental condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 
 
7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided that: 
 
 a.  An honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 
 
 b.  A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability. The regulation provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 
 
9.  The DOD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual. 
 
10.  Public Law 95-126 was enacted in October 1978 and required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required. Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review. 
 
11.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018 [Wilkie Memorandum], 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 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. 
 
//NOTHING FOLLOWS//