BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20180011366 APPLICANT REQUESTS: Correction of his records to show he was separated for medical reasons. 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, U.S. Code, 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 he should have been medically discharged from the Army after his good service for over six years. His new commander was prejudiced and biased. He got shot in neck and thereafter he went looking for his wife. He was charged with absent without leave (AWOL) and court-martialed. He was not aware of his action. 3. The applicant enlisted in the Regular Army on 10 December 1984. He reenlisted on 10 September 1986 for a period of six years. 4. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted to the rank of sergeant/E-5 on 9 March 1988. His DA Form 2-1 also shows he was AWOL on 21 May 1991 and that he was reduced to the rank of specialist/E-4 on 22 May 1991. 5. A DA Form 4187 (Personnel Action) shows the applicant departed AWOL on 16 October 1991. 6. A DD Form 458 (Charge Sheet) shows that on 19 November 1991, court-martial charges were preferred against the applicant for being AWOL beginning 7. A DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civilian authorities and returned to military control on 27 February 1992. 8. A DA Form 31 (Request and Authority for Leave) shows the applicant was placed in excess leave, beginning on 5 March 1991, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). 9. The applicant's complete separation proceedings are not available. However, his DD Form 214 shows he was discharged on 24 June 1992 under the authority of Army Regulation 635-200, chapter 10, by reason of for the good of the service in lieu of court- martial, with his service characterized as under other than honorable conditions. 10. There is no evidence in the applicant's available records indicating he was unable to perform his military duties due to physical disability. 11. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. His hardcopy medical records were not available for review. A review of VA’s Joint Legacy Viewer (JLV) indicates he was diagnosed with Cocaine and Alcohol Abuse. He is not currently eligible for services in the VA system but has been seen on a walk-in basis from 2005-2019 primarily seeking assistance with housing. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health condition at the time of his discharge. There is no documentation to indicate he did not meet retention standards at the time of his discharge. There is no diagnosed behavioral health condition to consider with respect to mitigation of the misconduct that led to his discharge. 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(s) 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 :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. 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, U.S. Code, 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 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense 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. A discharge under other than honorable conditions is normally considered appropriate. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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. The version of the regulation in effect at the time of the applicant's separation states in paragraph 4-3 that an enlisted Soldier may not be referred for, or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011366 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1