ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 August 2020 DOCKET NUMBER: AR20180011446 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149(Application for Correction of Military Record) .Report of Medical Examination, dated 8 July 1978 .Report of Medical History, dated 8 July 1978 .Military Health Records from period 24 August 1978 to 13 April 1981 .DD Form 214 (Certificate of Release or Discharge from Active Duty) for periodending 3 August 1981 .Post-Service Medical Records .Alabama Medicaid Agency letter, dated 22 September 2009 .Department of Veterans Affairs (VA) Regional Office letter, dated 5 November2010 .VA Veteran's Application for Compensation and/or Pension form, dated 12 July2012 .Two VA Authorization and Consent to Release Information to the VA forms,dated 12 July 2012 .Disabled American Veterans (DAV) National Service Office letter, dated 12 July2012 .VA Appointment of Veterans Service Organization as Claimant's Representativedated 12 July 2012 .DAV National Service Office letter, dated 24 July 2012: .Social Security Administration Supplemental Security Income Notice ofAward, 2 October 2008 .Social Security Administration Retirement Survivors and Disability InsuranceNotice of Award, dated 27 October 2008 .Three VA Regional Office letters, dated 22 February 2013, 19 June 2013 (withSeparation Packet), and 28 August 2013 .VA Regional Office, Administrative Decision, dated 11 September 2013 .VA Regional Office letter, dated 13 September 2013 .Two VA Records Management Center letters, dated 4 September 2015 and14 July 2016 FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20150012125 on 23 August 2016.2.The applicant states at the time of his separation he was in distress regarding thecare of his child. He sustained injuries while serving on active duty for which he needshealth care from the VA and without the upgrade he cannot receive the care that heneeds.3.On 22 August 1978, at the age of 19 years old, the applicant enlisted in the RegularArmy for a term of 4 years, upon completion of training he reported to his first unit ofassignment at Fort Benning, GA.4.He accepted nonjudicial punishment (NJP) on 27 August 1979 for possessing oneounce, more or less, of marijuana.5.His personnel qualification record shows on:•22 May 1980 he was in a casual duty status to report to Germany•25 June 1980 he was reported as assigned not joined/absent without leave(AWOL)•25 July 1980 he was dropped from rolls6.On 22 April 1981:a.Court-martial charges were preferred against the applicant for being absentwithout leave (AWOL) from 26 June 1980 and remaining absent until 6 April 1981. b.The applicant voluntarily requested discharge for the good of the service in lieu oftrial 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, to include understanding a physical examination was not required for discharge under the provisions of chapter 10, but that he may request a physical examination prior to his discharge. The applicant elected not to submit a statement on his own behalf; and c.The applicant underwent the required mental status evaluation and it wasdetermined he was mentally responsible and had the mental capacity to understand and participate in the proceedings. d.His unit commander endorsed his request to be discharged and provided theapplicant stated he was assigned to Fort Benning, GA, and that his wife refused to move and stayed in Alabama. His 7-month old child became severely ill and required brain surgery. It depressed him so much that he went AWOL. After he arrived home a second operation was required and he felt his family was more important than the Army and stayed home. On 6 April 1981 he took a few days off work and turned himself in to military authorities and was surprised when he was placed in the stockade; however, after 15 days in various stockades and jails, he stated that he must return home and will go home even if he has to do so in an AWOL status. e.The applicant's chain of command recommended approval of his request and on23 July 1981, the appropriate separation authority approved the applicant's request directing that he be reduced to lowest enlisted grade and he be issued a discharge under other than honorable conditions. 6.On 3 August 1981, he was discharged accordingly. His service was characterizedas UOTHC. He completed 2 years, 2 months, and 3 days of net active service thisperiod. His DD Form 214 shows his Dates of Time Lost during this Period: 800626 –810405 (284 days). 7.On 23 August 2016 the ABCMR denied the applicant's petition to upgrade hisdischarge, determining that the evidence presented did not demonstrate the existenceof a probable error or injustice. 8.The applicant provides the following in support of his application: a.Entrance Examination: Report of Medical Examination, dated 8 July 1978, whichindicated that he had defective distant and rear vision and a Report of Medical History, dated 8 July 1978, shows he had an operation or was advised to have an operation at age 12 for a hernia and he was hospitalized but did not recall the hospital or the doctor who treated him. b.Military health records from the period 24 August 1978 to 13 April 1981, show hewas treated for various medical issues, such as, a rash all over his body and while being treated he admitted that he was diabetic; sore throat; dizziness after running during physical training; twisting his ankle; blisters on his foot; a head injury he sustained when he was running to the dayroom and slipped and fell, rendering him unconscious for 20 to 30 seconds; chest pains; hiatal hernia; conjunctivitis; and having blackouts. c.Post-service medical records showing he was treated for: .syncope episodes (also known as fainting, is a loss of consciousness andmuscle strength characterized by a fast onset, short duration, andspontaneous recovery. It is caused by a decrease in blood flow to the brain,typically from low blood pressure) .knee pain .headaches – mild to moderate atrophy and early small vesselmicroangiopathy consistent with age and mild septal deviation and bilateralmiddle and inferior turbinate hypertrophy .chronic neck pain – post operation .posterior cervical wound infection .anterior cervical corpectomy (a surgical procedure that involves removing allor part of the vertebral body, usually as a way to decompress the spinal cordand nerves), for which he was admitted into the hospital d.Alabama Medicaid Agency letter, dated 22 September 2009, indicating that theapplicant did not receive VA benefits. e.VA Regional Office letter, dated 5 November 2010, showing the applicantrequested a copy of his DD Form 214 but a claim folder was not established. f.VA Veteran's Application for Compensation and/or Pension, dated 12 July 2012,shows the applicant submitted an application for compensation for disabilities: cervical spine fused, bilateral knee condition, lumbar spine, traumatic brain injury, hiatal hernia, headaches, and conjunctivitis. g.Two VA Authorization and Consent to Release Information to the VA, dated12 July 2012, showing the applicant consented for his medical treatment provider to release his medical information to the VA. The applicant listed cervical spine and bilateral knees as the disabilities in which he was filing a claim. h.Disabled American Veterans National Service Office letter, dated 12 July 2012,shows that the office acted as a representative for the applicant in submitting a claim to the VA for service connected disabilities: fused cervical spine, bilateral knee condition, lumbar spine, traumatic brain injury (TBI)/blackout, hiatal hernia, headaches, and conjunctivitis. i.VA Appointment of Veterans Service Organization as Claimant's Representativedated 12 July 2012, shows the applicant appointed the Disabled American Veterans National Service Office as his representative in submitted his claim to the VA. j.VA Regional Office letter, dated, 12 July 2012, states that they have determinedhis discharge from the military service on 3 August 1981, constituted a bar to payment of VA benefits and he was not entitled to health care. k.Disabled American Veterans Letter, dated 24 July 2012, indicating that they aresubmitting the attached material in support of the applicant's pending claim: .Social Security Administration Supplemental Security Income (SSI) Notice ofAward, dated 2 October 2008, shows that he met the medical requirements toreceive SSI. He also met the nonmedical rules and is eligible for SSIpayments .Social Security Administration Retirement, Survivors, and Disability InsuranceNotice of Award stating the applicant was entitled to monthly disabilitybenefits beginning September 2007 l.VA Regional Office letter, dated 22 February 2013, stating the applicant's claimwas still being processed and the office had not made a final decision. m.VA Regional Office letter, dated 19 June 2013, stating the office received theapplicant's claim for benefits and the military said that his service beginning 22 August 1978 and ending 3 August 1981 was not honorable. The VA office had to make a decision about his service. As long as they decide that his service was not dishonorable, he will be eligible for VA benefits. n.VA Regional Office letter, dated 28 August 2013, stating the applicant's claim wasstill being processed and the office had not made a final decision o.VA Regional Office, Administrative Decision, dated 11 September 2013, statedthe applicant's discharge was determined to be dishonorable for VA purposes. p.VA Regional Office, letter, dated 13 September 2013, states that they havedetermined his discharge from the military service on 3 August 1981, constituted a bar to payment of VA benefits and he was not entitled to health care. q.VA Records Management Center, letter, dated 4 September 2015, shows that theapplicant requested his entire VA claims folder on file at the VA office. r.VA Records Management Center letter, dated 14 July 2016, indicates the officeprovided the applicant with the requested records, entire VA claims folder. However, the office withheld the information which would fall under the deliberative process privilege under Freedom of Information Act. 9.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial bycourt martial. A member may be awarded an honorable or general discharge, if duringthe current enlistment period of obligated service he has been awarded a personaldecoration or if warranted by the particular circumstances of a specific case. A medicalexamination was not a separation requirement under the provisions of chapter 10; amember was required to request a medical examination according to Army Regulation40-501, which states, in pertinent part if a member pending separation may request amedical examination in writing. If a medical examination is requested by the member,then a mental status evaluation is required. 10.The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant's in-service treatment records. The VA's Joint LegacyViewer (JLV) revealed that the applicant is not service connected. The Veteran’sApplication for Compensation and/or Pension received 12 July 2012 showed that theapplicant applied for compensation for the following conditions: .Cervical spine. Service treatment records did not show treatment for the neck. .Bilateral knee. Service treatment records did not show treatment for the knees. .Lumbar spine. Service treatment records did not show treatment for the back. .TBI/Blackouts. Please see below. .Hiatal Hernia. He presented on 9 October 1979 with a complaint of chest pain.He was diagnosed with costochondritis (chest wall pain), but a hiatal hernia wasalso suspected because of characteristic symptomology and lack of response topain medication. He had one specific visit (3 December 1979) for this condition. .Headaches. Please see below. .Conjunctivitis. On 5 December 1979, the applicant was treated for left eyeconjunctival inflammation secondary to contact from debris from car batterycorrosion from battery acid. He was advised not to drive military vehicles for 48hours. a.The 22 April 1981 Report of Mental Status Evaluation showed no mental healthissues. The in-service treatment records did not show visits for mental health concerns. However on 27 September 1979 the applicant was running to the dayroom and slipped and fell and hit his head with loss of consciousness, with some confusion about whether he hit his head on a door or the floor. He sustained a laceration around the left eye brow. Five days later he returned reporting blurred vision, which later resolved. This incident meets criteria for a traumatic brain injury (TBI). On 11 April 1980, the applicant experienced a syncope episode (fainting spell). He reported a prior episode around age 15 or 16. The military provider assessed that the cause was likely vasovagal—an interaction between nerves and blood vessels of the heart usually in response to a trigger. Later, when he returned for follow up for the fainting spells, he also reported headaches. There were no other in-service visits for headaches. The record showed the last in-service fainting episode occurred on 21 April 1980. The 8 April 1981 Pre- confinement Physical revealed that the applicant had a normal exam and that he was determined eligible for full duty. No conditions were found that failed medical retention standards. Concerning his request for a discharge upgrade, the reviewer notes that the applicant’s TBI condition is considered mitigating for the AWOL offense which led to separation from the Army. The TBI condition can be associated with impaired judgement and poor impulse control. The TBI condition is not mitigating for the marijuana possession offense because it preceded the head injury. 11.In reaching its determination, the Board can consider the applicant’s petition andservice record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published DoD 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 been injured on active duty and the review and conclusions of the ARBA Medical Advisor. The Board noted the ARBA Medical Advisor's finding that the applicant's TBI condition mitigates the AWOL that led to his discharge; however, the Board found that condition to be insufficiently mitigating to support a recommendation for relief in this case insofar as when he returned to military control, the applicant expressed his intent to go AWOL again and remain so if he was not released. The Board also noted the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. 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. X 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 635-200 (Personnel Separations – Enlisted Personnel), in effect atthe time, set forth the basic authority for the administrative separation of enlistedpersonnel. a.An honorable discharge was a separation with honor and entitled the recipient tobenefits 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.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 honorableconditions, 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 memberswho had committed an offense or offenses for which the authorized punishment 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. e. A medical examination under the provisions of chapter 10 was not required, but may be requested by the member in writing. If requested, a mental status evaluation was also required. If requested; a copy of the medical examination and mental status evaluation was to be included in the separation packet proceedings. f. Chapter 6 (Separation Because of Dependency or Hardship), provides an member may be discharged or released when it is considered that undue and genuine hardship exists. Hardship exists when in circumstances not involving death or disability of a member of the service member's or his/her spouse's immediate family, his/her separation will materially affect the care or support of his/her family by alleviating undue and genuine hardship; separation under these provisions will be granted when all the following circumstances exist: . Conditions have arisen or have been aggravated to an excessive degree since entry onto active duty or active duty for training . Conditions are not of a temporary nature . Every reasonable effort has been made by the enlisted member to alleviate the hardship conditions without success. . Discharge or release from active military service is the only readily available means of eliminating or alleviating the hardship conditions. 2. Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, if a member pending separation may request a medical examination in writing. If a medical examination is requested by the member, then a mental status evaluation is required. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS//