ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:   28 July 2020DOCKET NUMBER:  AR20180008852 


APPLICANT REQUESTS:  in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 December 1986, by: 

.upgrading his service characterization from under other than honorableconditions (UOTHC) to honorable; or alternately, under honorable conditions

.changing his narrative reason for separation to show he was medicallydischarged



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge or Dismissal from theArmed Forces of the United States), dated 15 April 2018 and 30 October 1989

.DD Form 214, for the period ending 12 December 1986



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he injured his right knee in training; it still bothers himand has affected his life.  In a previous request to the Army Discharge Review Board(ADRB), he states he went absent without leave (AWOL) because he felt no one waswilling to understand or help him with his physical problem.  Every time he was requiredto perform physical training (PT), especially running, his right knee would hurt.  At onetime his leg was in a cast for about two weeks.  Upon removal of the cast, the doctorand everyone else insisted there was nothing wrong, yet it continued to hurt.  In hisopinion no one cared, so he just took off.

3.The applicant enlisted in the Regular Army on 20 February 1986.

4.Court-martial charges were preferred against the applicant on 14 November 1986,for violations of the Uniform Code of Military Justice (UCMJ).  The relevant
DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 18 July 1986 through on or about 8 November 1986. 

5.The applicant consulted with legal counsel on 14 November 1986.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct or a dishonorable discharge, and the procedures and rights available to him. 

b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge 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 acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

c.He was further advised that there is no automatic upgrading nor review by anyGovernment agency of a less than honorable discharge and that he must apply to the ADRB or the ABCMR if he wished for a review of his discharge.  He realized that the act of consideration by either board does not imply that his discharge would be upgraded. 

d.He was advised he could submit any statements he desired in his own behalf;however, he elected not to submit any statements. 

e.He declined a physical evaluation prior to separation.

6.The applicant’s commander recommended approval of his discharge request on25 November 1986 in lieu of trial by court-martial, and recommended he receive aUOTHC discharge.  His requests included the following statements "SM is charged withan AWOL of 113 days, apprehended by civilian authorities" and "SM has becomedisillusioned with the military, Rehabilitation efforts considered futile."

7.The separation authority approved the applicant's request for discharge on2 December 1986, under the provisions of Army Regulation 635-200, Chapter 10, in lieuof trial by court-martial, and directed that he be discharged UOTHC.

8.The applicant was discharged on 12 December 1986, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214 hewas issued confirms his service was characterized as UOTHC.

9.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

10.The applicant’s service records are void of evidence of a right knee injury, orevidence that shows he suffered from a medical condition of such severity that eithermade him unfit for retention in accordance with Army Regulation 40-501 (Standards ofMedical Fitness), or that warranted his referral to the Army Physical DisabilityEvaluation System (PDES).

11.The applicant petitioned the ADRB for an upgrade of his discharge; however, aftercareful consideration, the ADRB denied his request on 1 May 1992.

12.In the processing of this case, the Army Review Boards Agency Case ManagementDivision requested the applicant provide a copy of medical documents to support themedical injury to his right knee.  The applicant failed to respond to this request.

13.The applicants provides his DD Form 214 for consideration.

14.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments provided and the limited information in the VA's Joint Legacy Viewer (JLV).Due to the period of time of the applicant's service there are no records in iPERMS, theArmed Forces Health Longitudinal Technology Application (AHLTA), or Health ArtifactsImage Management Solutions (HAIMS).  The following findings and recommendationsare made:  The applicant is requesting an upgrade in his discharge from UOTHC tohonorable or UHC, and changing his narrative reason for separation to reflect that hewas medically discharged.  The applicant has not submitted any medical records tosupport his assertion that he sustained a knee injury while on active duty.  He enlisted inthe Army on 20 February 1986.  On 14 November 1986 he had court-martial chargespreferred against him for being AWOL from 18 July 1986 – 8 November 1986.  Theapplicant declined to submit any statements on his behalf, and also declined a physicalevaluation prior to his separation.  He was discharged on 12 December 1986 IAWAR635-200, Chapter 10, in lieu of trial by court-martial.  There are no medical recordsavailable for review in conjunction with the applicant’s discharge that would indicate thatthe applicant had been diagnosed with any condition that did not meet retentionstandards IAW AR40-501, Chapter 3 at the time of his separation.  Therefore, based on
the available information, it is the opinion of the Agency Medical Advisor that insufficient evidence exists to upgrade the applicant’s discharge based on any medical condition. 

15.The Board should consider the applicant's request and his service record inaccordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and the medical advisory were carefully considered.  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, injustice, or inequity; the Board agreed with the medical advisory that there is insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case as there is insufficient evidence the applicant had a mitigating medical condition for the offense which led to his separation from the Army.  Neither did the Board find sufficient evidence of post-service honorable conduct, time in service or other grounds for clemency in this case.  The Board agreed that the applicant’s discharge characterization is appropriate. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX 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. 


XCHAIRPERSON


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the VASRD. 
 
3.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states, in part: 
 
 a.  Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.   
 
 b.  The PEB-appointed counsel advises the Soldier of the Informal PEB (IPEB) findings and recommendations and ensures the Soldier knows and understands his or her rights.  The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension.   
 
4.  Directive-Type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES).  It states, the IDES is the joint Department of Defense (DoD) VA process by which the DoD determines whether wounded, ill, or injured service members are fit for continued military service and by which DoD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. 
 
5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 
 
 a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
 
 b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge was normally considered appropriate. 
 
6.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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. 
 
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