BOARD DATE: 7 August 2020 DOCKET NUMBER: AR20180008055 APPLICANT REQUESTS: The applicant requests, in effect, to change his narrative reason for separation to a medical discharge which would give him an honorable discharge instead of an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 he feels injustice was done to him while in military service because he should have received a medical discharge based on his medical conditions instead of receiving a under honorable conditions. He had a head/brain injury in service and the medical personnel knew it. He feels he had medical conditions severe enough to warrant a medical separation. 3. On 12 February 1980, the applicant enlisted in the Regular Army for a term of 3 years. On 1 February 1983, he reenlisted for a term of 6 years. 4. His personnel qualification record shows he was promoted to: * Private E-2 (PV2) on 12 August 1980 * Private First Class (PFC)/E-2 on 11 March 1981 * Specialist Four (SP4/E-4 on 4 December 1981 5. After serving various stateside and overseas assignments in Germany and Korea, on 22 July 1985, he was assigned to Fort Sill, OK. On 5 June 1986 he was promoted to Sergeant (SGT)/E-5. 6. On 9 January 1987, the applicant's immediate commander issued him a letter of reprimand for conduct unbecoming of a noncommissioned officer (NCO). The commander states that on 3 January 1987, the applicant accompanied four enlisted Soldiers, a specialist four and three privates first class, out for the reason of drinking alcoholic beverages. Three of the Soldiers were from the applicant's battery. This constituted fraternization and did not promote order and discipline within the unit. One of the Soldiers was cited by the military police for driving while intoxicated while the applicant was a passenger in the vehicle. The letter was placed in his Military Personnel Records Jacket. 7. He extended his enlistment on two occasions, 11 February 1987 (17 months) and 7 July 1988 (15 months), extending his enlistment to a term of 8 years and 8 months. On 4 September 1988, he was assigned overseas to Germany. 8. A DA Form 3975 (Military Police Report) shows on 1 April 1989 the military police apprehended the applicant for violating Article 128, Uniform Code of Military Justice (UCMJ) for assault consummated by a battery. It states the investigation revealed that the applicant and his wife became involved in a verbal altercation which escalated into a physical altercation when the applicant struck his wife about the face with a closed fist. His wife sustained a small contusion to the back of her head area but declined medical attention. He sustained a small scratch to his right cheek. The applicant had a previous offense of assault consummated by battery. He was apprehended and made a verbal statement. . a. A DD Form 1920 (Alcohol Influence Report) shows at the time of his apprehension he had a faint odor of alcoholic beverage, he was talkative, combative and crying, and his speech was fair. He refused to take a sobriety test. b. His wife provided a sworn statement in which she described how the applicant's assaults against her started when she arrived in Germany on 28 March 1989. He hit her about the face and arm and threatened to kill her. On 1 April 1989, the assault was due to a verbal altercation regarding the money she spent at the commissary and he accused her of sleeping with his father. The applicant hit her in the face and arm, pulled her hair, and kicked her with his feet. She began hitting him back and while trying to hit her, he hit their daughter instead. She ran to a neighbor's house and called the military police. c. Military Police Investigator L_ R_ provided a sworn statement in which he stated in an interview the applicant related to him that his wife arrived in country on 28 March 1989. On 1 April 1989, he and his wife became involved in an argument over the amount of money she spent in the commissary and the argument continued later that night. He admitted to drinking and striking his wife about the face. He was outraged because his wife released personal information to the neighbors. 9. On 4 April 1989, the applicant accepted nonjudicial punishment (NJP) for unlawfully striking H_ O_ on the arm with his hand and by grabbing her by her arms and shaking her and also unlawfully striking S_ S_ in the neck with his hand and pushing her down the stairs on 11 December 1988. He received a punishment of reduction to specialist (SPC)/E-4 and 45 days of extra duty. The offense was committed and the NJP was read to the applicant on 17 March 1989, prior to the date he was apprehended for the assault consummated by battery upon his wife. 10. A memorandum dated 21 May 1989 shows the applicant?s immediate commander recommended to the battalion commander that he be separated under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. He recommended that he receive a general discharge. He stated the applicant came to the unit as a noncommissioned officer (NCO) but had not performed anywhere near the standards expected of one. He damaged an M137 mount worth $2,500.00 due to his negligence. The applicant was not and would not be an asset to the U.S. Army and further retention would cause disciplinary problems and create a hazard to the unit and other Soldiers. 11. On 31 May 1989, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of AR 635-200, paragraph 14-12c, for commission of a serious offense. The reason for the commander?s proposed action was the applicant received a Field Grade Article 15 for two specifications of assault and battery. His actions made him a threat to the unit?s ability to complete the mission and could not be tolerated. The commander advised him of his rights to include the right to have his case heard before an administrative separation board and informed him that failure to respond within 7 duty days of receipt of the notification would constitute waiver of those rights. The commander recommended a general discharge. He acknowledged he had been notified of the pending separation action against him. 12. An election of rights is a part of the applicant’s separation packet; however, the form is blank. On 19 June 1989, 13 duty days after notification, the applicant submitted a request for conditional waiver. a. He acknowledged he had been advised by his consulting counsel of the basis for the contemplated action, understood his rights, and elected not to submit statements in his own behalf. He was entitled to an administrative separation board because he would have more than 6 years of active and reserve service at the time of his separation. At the time the applicant was notified of the pending separation, he had 9 years, 4 months, and 8 days of total service. b. He voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation of no less favorable than honorable. He understood that if the separation authority refused to accept his conditional waiver of a hearing before an administrative separation board that his case would be referred to an administrative separation board. 13. By endorsement, undated, the battalion commander requested a review by the Assistant Staff Judge Advocate (SJA) of the recommendation for elimination on the applicant, for compliance with law and regulation. The record is void of any documentation showing if or how the Assistant SJA responded to the battalion commander?s request. 14. By endorsement, undated, the battalion commander recommended approval of the applicant?s discharge with a general character of service. The endorsement is void of any indication of the intermediate commander reviewing the applicant?s conditional waiver and recommending approval or disapproval of the conditional waiver. The record is void of documentation showing whether or not his conditional waiver was accepted, administrative board proceedings, or an endorsement or memorandum approving the separation. 15. The 369th Personnel Service Company Orders 129-27, dated 28 June 1989, 10 days after the applicant signed the conditional waiver, shows the applicant was reassigned to the U.S. Army transition point with a reporting date of 11 July 1989 to be discharged on 12 July 1989. 16. On 12 July 1989, the applicant was discharged. His service was characterized as under honorable conditions. He completed 9 years, 5 months, and 1 day of net active service this period. He completed 6 years, 5 months, and 12 days of his 8-year and 8- month contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows: * He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon 2nd Award * Army Achievement Medal * Army Good Conduct Medal 2nd Award * Noncommissioned Officer Professional Development Ribbon (2nd Award) * M-16 Rifle Expert Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Air Assault Badge * Separation Authority: AR 635-200, paragraph 14-12c * Separation Code: JKQ * Narrative Reason for Separation: Misconduct – Commission of a Serious Offense 17. An Army Review Boards Agency Case Management Division letter, dated 18 September 2019, advised the applicant that in order for the ABCMR to consider his application, he must provide a copy of his medical documents that support his medical issues and what offices to contact for assistance. His case was placed on hold until 18 October 2019 to give him an opportunity to respond. If this office did not hear from him within the specified time, his case would be forwarded to the Board with the documents he provided with his initial application. The applicant did not respond. 18. 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. The ARBA Medical Advisor made the following findings and recommendations: The applicant is applying to the ABCMR in essence requesting a referral to the Disability Evaluation System and an upgrade of his 12 July 1989 discharge characterized as under honorable conditions. There are no medical documents with the supporting documentation. There is no evidence the applicant had any medical condition which was a contributing factor to his poor conduct. There is no condition, mental health or otherwise, which would mitigate the admitted criminal battery. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, 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 to have had a head injury 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 conclusions of the ARBA Medical Advisor that his misconduct was not mitigated by a medical condition. The Board also agreed that there is insufficient evidence to support a conclusion that he should have been referred for a disability evaluation prior to his discharge. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the correction described in Administrative Note(s) below. 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, except for the corrections addressed in Administrative Note(s) below, 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): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 July 1989, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 800212 UNTIL 830201" 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 – 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. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. c. A medical examination was not a separation requirement under the provisions of chapter 14-12c; a member was required to request a medical examination; however, a mental status evaluation was required with or without a request from the Soldier. d. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. Per Manual for Courts-Martial, 1984, Article 128, UCMJ –– assault consummated by battery included a bad conduct discharge. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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// ABCMR Record of Proceedings (cont) AR20180008055 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008055 7 ABCMR Record of Proceedings (cont) AR20180008055 6