ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20180004858 APPLICANT REQUESTS: upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge or to change his narrative reason to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states he hurt his back, and his son had spinal meningitis. The doctor gave his son two days to live. He was notified by American Red Cross and went home on leave for 30 days. He wrecked his car, his mother died from a gunshot, and he went absent without leave (AWOL). 2. In connection with his induction on 12 April 1968, the applicant underwent a medical examination and the following documents were completed: a. SF 93 (Report of Medical History) in which the applicant indicated he was in good health, but among other conditions, he had a history of recurrent back pain. b. SF 88 (Report of Medical Examination) showing the examiner determined the areas examined were normal with the exception of a scar on his left knee and cleared the applicant for induction. 3. On 10 February 1969, the applicant was inducted into the Army of the United States, at the age of 20 years. 4. After completing initial entry training, the applicant was awarded military occupational specialty (MOS) 13A (Field Artillery). On 25 July 1969, the applicant was assigned to Hawaii. 5. The applicant’s enlisted qualification record shows his status changed to: 1 * AWOL from 14 September 1969 and remained absent until 17 March 1970 (185 days) * Confinement from 18 March 1970 to 22 March 1970 (5 days) * AWOL from 1 April 1970 to 15 October 1970 (198 days) * Confinement from 16 October 1970 to 9 November 1970 (25 days) * AWOL from 13 November 1970 to 24 April 1971 (163 days) * Confinement from 25 April 1971 to 25 April 1971 (1 day) * AWOL from 3 May 1971 to 3 May 1971 (1 day) * AWOL from 6 May 1971 and remained absent until 18 May 1971 (13 days) 6. On 20 May 1971 charges were preferred against the applicant for two charges of Article 86, Uniform Code of Military Justice, and five specifications of being absent from: * 14 September 1969 and remaining absent until 18 March 1970 * 1 April 1970 and remaining absent until 16 October 1970 * 13 November 1970 and remaining absent until 25 April 1971 7. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights, and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. He elected to submit statements on his own behalf: a letter from the doctor who treated his parents, a letter from his brother, and a personal statement. The applicant explains in his personal statement: * His attempts to apply for a hardship discharge * The issues with his wife and his in-laws, encouraging her to divorce him * His father-in-law?s attempt to rape the applicant?s wife * His wife?s complications with her pregnancies * Both his wife and mother had medical problems with ulcers and their nerves * The effect the death of his uncle had on him * His son was hospitalized because of a medical condition * How he was in an accident when he was at home on leave and suffered a back injury, bleeding kidney and smashed up stomach * His father suffered three light strokes and was 80 years old * The circumstances at home which influenced him to go AWOL * In view of his medical record and the way his back and kidney hurt all the time he was requesting discharge from the Army for the good of the service a. In connection with his request for AR 635-200, Chapter 10 proceedings, on 9 July 1971, the applicant underwent a medical examination: (1) An SF 93 (Report of Medical History) shows the applicant indicated he was in good health and to the question ?Have you had or have you now,? he marked ?no? to recurrent back pain. (2) On an SF 88 (Report of Medical Examination) the examiner indicated that all areas examined during the clinical evaluation were normal, but mentioned corrective lenses. He cleared the applicant for separation. b. His unit commander endorsed his request to be discharged with an undesirable discharge certificate and noted the applicant had been assigned to various duty stations. His conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. The administrative burdens involved in courts-martial and possible confinement were not considered warranted in view of the nature of the offense. Based on his previous record, punishment could be expected to have minimal rehabilitative effect and the total lack of any ultimate benefit to the Army or society would seem to justify the granting of his request. c. The applicant's intermediate commander recommended approval of his request and on 27 July 1971, the appropriate separation authority approved the applicant's request, directing that he be reduced to the grade of private/E-1 and issued an Undesirable Discharge Certificate. d. On 2 August 1971, he was discharged accordingly. His service was characterized as UOTHC and he was issued an Undesirable Discharge Certificate. He completed 8 months and 13 days of net service this period. His DD Form 214 (Report of Transfer or Discharge) shows he was separated on temporary records and his dates of time lost during this period was 647 days (503 days prior to normal expiration term of service (ETS) and 144 days after normal ETS). e. His enlisted qualification record shows his conduct and efficiency ratings: * 4 February 1969 to 13 April 1969, conduct and efficiency –– excellent (basic training) * 14 August to 12 October 1969, conduct and efficiency –– satisfactory (assignment in Hawaii) * 23 March 1970 to 1 August 1971, conduct and efficiency –– unsatisfactory (assignment at U.S. Army Armor Center/Personnel Control Facility, Fort Knox, KY) 8. On 5 December 1990, the ABCMR denied his petition to upgrade his UOTHC to an honorable. The applicant had not presented and the records did not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. 9. Doctor B_ R_'s letter, dated 30 November 1971, states the applicant was discharged from the Army in August 1971 with a history of spondylolisthesis with limitations on his activity (profile) by the U.S. Army Hospital, Fort Knox, KY to the extent of forbidding lifting over 25 pounds or standing over an half an hour. The applicant was seen by his office on two occasions recently with complaints of pain in his back radiating down both legs, which became pronounced on bending or standing. Medication was prescribed with no relief. 10. AR 635-200 provides the authority for the separation and discharge of enlisted personnel: (1) Chapter 10 provides for a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination was required for this chapter and it would accompany the request for discharge. (2) Chapter 6 (Separation for Dependency or Hardship) states Soldiers may be discharged or released because of genuine dependency or hardship. Dependency exists when because of death of disability of a member of the enlisted person?s family, other members of his family become principally depended upon him for care or support. Hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Pregnancy of an enlisted man?s wife is not considered a disability for which his separation is justified. This does not preclude separation because of a disability occurring as a result of pregnancy. An honorable or general, under honorable conditions discharge normally were considered appropriate. e. According to the MCM, 1969 (Revised Edition), the punishment for violation of Article 86, UCMJ, by absence without leave for more than 30 days included a punitive discharge. f. AR 40-501 provides a listing of all medical conditions and specific causes for referral to an MEB, 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; and/or may prejudice the best interests of the Government if the individual were to remain in the military Service. Conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. g. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states the mere presence of an impairment does not, 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 the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. h. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 12. Based on the applicant's reference to a medical condition(s) being the basis of his separation, the Army Review Board Agency medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section." MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, and his previous denial by the ABCMR. 2. Highlighted on the applicant’s pre-entrance Report on Medical History is “Back pain secondary to strain last summer.” Other than diminished visual acuity, there are no medical issues or concerns documented on the accompanying Report of Medical Examination. His pre-separation Report of Medical History and Report of Medical Examination completed in July 1971 show no health issues or concerns, and he was cleared for separation. 3. In a physician’s note dated 30 November 1971, the provider wrote: “[Applicant] was discharged from the Army August 1971 with a history of spondylolisthesis and limitations of his activity at that time by U.S. Army Hospital, Fort Knox, Kentucky to the extent forbidding lifting over 25 pounds or standing over ˝ hour. Patient has been seen in my office on two occasions recently with complaints of pain in his back with radiation on down both legs.” This was after his discharge, and there is no contemporaneous medical documentation. 4. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Even if such evidence were identified, the applicant’s actions made him ineligible for referral under paragraph 1-2c of AR 635-40, which precludes referral to the Disability Evaluation System when a Soldier has been charged with offenses that may result in a punitive discharge. 5. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. There is no evidence the applicant had any medical condition which was a contributing factor to his misconduct. There is no condition, mental health or otherwise, which would mitigate his misconduct. It is the opinion of the Agency Medical Advisor that neither an upgrade of his discharge nor a referral of the case to the Disability Evaluation System is warranted. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense 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 applicant's claim regarding his health, and the review and conclusions of the ARBA Medical Advisor based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by any health conditions. The applicant provided insufficient evidence of post-service achievements or letters of reference in upport of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation and the reason for his separation were 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. X CHAIRPERSON 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member?s current enlistment of current period of service with due consideration for the member?s, age, length of service, grade, and general aptitude. b. A general discharge was a 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. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. An individual who submits a request for discharge for the good of the Service will undergo a medical examination as prescribed in chapter 10, AR 40-501. The report of medical examination would accompany the request for discharge. e. Chapter 6 (Separation for Dependency or Hardship), states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that dependency exists when because of death of disability of a member of the enlisted person?s family, other members of his family become principally depended upon him for care or support. Hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted. An honorable or general, under honorable conditions normally were considered appropriate. 2. Per Manual for Courts-Martial, 1969 (Revised Edition), Article 86, UCMJ –– absence without leave for more than 30 days, included a punitive discharge. 3. AR 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), provides a listing of all medical conditions and specific causes for referral to an MEB. It states: a. The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve. The medical conditions and physical defects, individually or in combination, are those, that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military Service. b. Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states: a. The mere presence of an impairment does not, 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 the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. These guidelines are used to refer Soldier to an MEB. b. 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted Soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. d. The fact that a Soldier has a condition listed in the Department of Veterans Affairs schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. e. The medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 5. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 6. 38 USC 1110 (General - Basic Entitlement): 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. 7. 38 USC 1131 (Peacetime Disability Compensation - Basic Entitlement): 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. //NOTHING FOLLOWS//