IN THE CASE OF:  

BOARD DATE:  31 July 2020

DOCKET NUMBER:  AR20180008236


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable (general) or honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 18 May 2018
*	Entrance Standard Form (SF) 93 (Report of Medical History)
*	Service Medical Records (5 pages)
*	Separation SF 93 and SF 88 (Report of Medical Examination)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 26 May 1981
*	Post Service Current Patient Restrictions (2 pages)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 an upgrade is warranted because he was not allowed to appear 
before a medical board.  Had he gone to the medical board, he would have received a 
medical separation.

3.  The applicant enlisted in the Regular Army on 18 June 1980.

4.  The applicant accepted nonjudicial punishment (NJP) on 23 September 1980, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for 
wrongfully possessing illegal drugs and theft of the personal property of a fellow Soldier, 
on or about 17 September 1980. 

5.  The available medical records show the applicant was treated for bilateral deformity 
of the toes (club feet).  The condition was considered to have existed prior to service 
(EPTS).  An x-ray report indicates the applicant's examination was directed in 
preparation of a medical board.

6.  The applicant was placed on a temporary profile for his foot condition; the profile was 
downgraded from 3T (temporary) to 4T (temporary) on 10 February 1981.

7.  Court-martial charges were preferred against the applicant on 15 January 1981, for 
violations of the Uniform Code of Military Justice (UCMJ).  The relevant DD Form 458 
(Charge Sheet) indicates he was charged with the indicated offenses: 

*	conspiracy to commit an offense under the UCMJ, to wit: rob a fellow Soldier by 
force
*	aiding and abetting two other Soldiers, by means of force and fear, stealing from 
a fellow Soldier approximately ninety-seven dollars ($97.00)
*	committing sodomy with a fellow Soldier
*	unlawfully receiving thirty-two dollars ($32.00) known to have been stolen from a 
fellow Soldier
*	knowingly making a false sworn statement on or about 22 November 1980, 
indicating he and another Soldier had been robbed
*	knowingly making a false statement on or about 24 November 1980, that he had 
not consented to an act of sodomy being performed on him by a fellow Soldier

8.  The court-martial charges and supporting document were forwarded for processing 
on 16 January 1981.

9.  The available record does not include the applicant's request for separation or any of 
the separation processing documents. 

10.  In accordance with the governing regulations concerning Military Justice and Army 
Separations, the applicant would have been required to consult with legal counsel, been 
advised of the basis for the contemplated trial by court-martial, the maximum 
permissible punishment authorized under the UCMJ, the possible effects of a UOTHC 
discharge, and the procedures and rights that were available to him prior to submitting a 
voluntarily request for discharge under the provision of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – 
in lieu of trial by court-martial.  In his request for discharge, he would have admitted to 
being guilty to the charges against him, or of a lesser included offense that authorized 
the imposition of a bad conduct or dishonorable discharge.  

11.  The applicant was discharged on 26 May 1981.  The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200,  
Chapter 10, for the good of the service, and his service was characterized as UOTHC.  
His DD Form 214 further shows he was discharged in the rank/grade of private/E-1, he 
had not completed training and had not been awarded a military occupational specialty, 
and he had 11 months and 9 days of active duty service.

12.  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.  

13.  The applicant's record documents no acts of valor, significant achievement, or 
service warranting special recognition. 

14.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant's records in iPERMS, the Armed Forces Health 
Longitudinal Technology Application (AHLTA), Health Artifacts Image Management 
Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following 
findings and recommendations:  Records were searched using both social security 
numbers.  There were no records in AHLTA nor iPERMS.  JLV search revealed that the 
applicant is not service connected for any disabilities by the VA.  Military records 
indicate the applicant was pending multiple court-martial charges 16Jan1981.  Service 
treatment records showed the applicant was seen in February 1981 for two and a half 
weeks of bilateral foot pain not due to injury.  He was diagnosed with bilateral clubbed 
feet by the foot specialist.  This condition was determined to have existed prior to 
service.  The applicant’s entrance exam did not mention the condition, however medical 
principles concerning the natural history of the condition support that it was a congenital 
condition.  Clubbed feet can be acquired in specific circumstances the medical facts of 
which are not present in this case (e.g. a stroke or a spinal cord tumor etc).  The 
condition can be mild and go unnoticed with the individual compensating until they 
encounter the rigors of military training or such.  On 10Feb1981, orthopedics issued a 
temporary level 4 profile which returned the applicant to duty with some limitations.  The 
03Apr1981 discharge exam showed the applicant was given a permanent P3 profile for 
his bilateral foot condition and he was cleared for discharge/separation.  The examiner 
did not indicate whether the condition was considered aggravated by service; however, 
it is observed that no in-service injury/trauma was noted.  The applicant’s submitted log 
of patient restrictions starting from 02May2012 (over 3 decades after military discharge) 
does not provide convincing medical evidence of a nexus between symptoms during 
military service and more recent symptoms and thus is not evidence of permanent 
service aggravation.   IAW AR 40-501, the congenital clubbed foot condition alternately 
referred to as Flexion Contraction of Both Feet and Bilateral Deformities of Toes 
(Contractures) did not meet retention standards because it required significant duty 
limitations (no walking or marching over ¼ mile).  Also of note, the applicant endorsed 
depression or excessive worry, and nervousness on the 03Apr1981 Report of Medical 
History form.  The examiner wrote “nervousness due to domestic problems”.  The 
19Mar1981 Report of Mental Status Evaluation showed normal behavior; and normal 
thinking process and content.  It was determined the applicant had no significant mental 
illness.  The examiner wrote that the applicant acknowledged the error in his behavior 
and accepted responsibility for his actions.  JLV records are minimal and did not show a 
behavioral health diagnosis.  In accordance with the 3 Sep 2014 Secretary of Defense 
Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance, there is 
insufficient documentation to support a behavioral health diagnosis at the time of his 
discharge and thus no diagnosis to consider with respect to mitigation of misconduct for 
consideration of a discharge upgrade.

15.  Regulations provide that a Soldier charged with an offense under the UCMJ or who 
is under investigation for an offense chargeable under the UCMJ, which could result in 
dismissal or punitive discharge, may not be referred for, or continue, disability 
processing unless the investigation ends without charges; the officer exercising proper 
court-martial jurisdiction dismisses the charges; or the officer exercising proper court-
martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such 
a sentence.

16.  The Board should consider the applicant's petition and his service record in light of 
the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, including the applicant’s statement and 
the Medical Advisory Opinion, the Board determined there is insufficient evidence to 
grant relief.  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 and found insufficient evidence of error or injustice.  The Board agreed with 
the Medical Advisory Opinion that there is insufficient documentation to support a 
behavioral health diagnosis at the time of his discharge and thus no diagnosis to 
consider with respect to mitigation of misconduct for consideration of a discharge 
upgrade.  Furthermore, per regulation, in the case of a Soldier charged with an offense 
under the UCMJ or who is under investigation for an offense chargeable under the 
UCMJ which could result in dismissal or punitive discharge, may not be referred for, or 
continue, disability processing unless the investigation ends without charges; the officer 
exercising proper court-martial jurisdiction dismisses the charges; or the officer 
exercising proper court-martial jurisdiction refers the charge for trial to a court-martial 
that cannot adjudge such a sentence.  Therefore, the applicant would not have been 
referred for medical processing while in service, even if the applicant’s records reflected 
that he had a Boardable condition.  Therefore, the Board found insufficient evidence to 
upgrade the characterization or grant the applicant a medical discharge.  Based on the 
applicant’s misconduct, the characterization is proper and equitable.




BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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.  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 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 15-185 (ABCMR) prescribes the policies and procedures for 
correction 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 the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  It provides:

	a.  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.  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.  A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

	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 under other than honorable conditions is normally considered 
appropriate.

4.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) sets forth policies and procedures that apply in determining whether a 
Soldier is unfit, because of physical disability, to reasonably perform the duties of his or 
her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, 
this regulation provides for disposition of the Soldier according to applicable laws and 
regulations.

	a.  Paragraph 4-1 states in the case of a Soldier charged with an offense under the 
UCMJ or who is under investigation for an offense chargeable under the UCMJ which 
could result in dismissal or punitive discharge, may not be referred for, or continue, 
disability processing unless the investigation ends without charges; the officer 
exercising proper court-martial jurisdiction dismisses the charges; or the officer 
exercising proper court-martial jurisdiction refers the charge for trial to a court-martial 
that cannot adjudge such a sentence.

	b.  Paragraph 4-19e (Conditions which existed prior to entry in service) states 
Soldiers who are unfit by reason of physical disability neither incurred nor aggravated 
during any period of service while entitled to basic pay, or as the proximate result of 
performing active duty or inactive duty training, but which effects duty performance, will 
be separated for physical disability without entitlement to benefits.

		(1)  Unchanged physical defects.  A Soldier will not be found unfit because of 
physical defects that:

*	Were known to exist at the time of acceptance for military service, 
*	Have remained essentially unchanged since acceptance
*	Have not interfered with performance of effective military service
		
		(2)  After a Soldier is accepted for active duty, discovery of an impairment 
causing physical disability is not conclusive evidence that the condition was incurred 
after acceptance.  Consideration must also be given to accepted medical principles in 
deciding whether a medical impairment was the result of, or aggravated by, military 
service while the Soldier was entitled to basic pay.  Accepted medical principles may 
not be excluded in making these decisions even when there is no other evidence 
indicating the impairment was present before the Soldier's entry on active duty.  The 
Soldier's length of service must be considered when determining service aggravation.

5.  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.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20180008236


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20180008236


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ABCMR Record of Proceedings (cont)	AR20180008236


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