IN THE CASE OF:  

BOARD DATE:  31 March 2020

DOCKET NUMBER:  AR20180014468


APPLICANT REQUESTS:  The applicant requests an upgrade of his general under 
honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

*	DD Form 293 (Application for the Review of Discharge or Dismissal) in lieu of 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 enlisted with scoliosis and during the last year of his service, 
he was on profile.  

3.  On 5 June 1975, the applicant enlisted in the Regular Army for a term of 3 years.
In connection with his enlistment, he underwent a medical examination.  His Standard 
Form (SF) 88 (Report of Medical Examination), dated 30 December 1974, shows the 
purpose of the examination for enlistment in the Air Force.  Although he had history of 
mild scoliosis, he was qualified for enlistment in the Air Force.  On 5 June 1975, a 
medical doctor signed the form indicating that there were no disqualifying defects.  The 
reasons he did not enlist in the Air Force are unknown; however, it appears that the 
same examination was used for his enlistment into the Regular Army.

4.  On 8 December 1977, he was honorably discharged for immediate reenlistment and 
on 9 December 1977, at the age of 20 years old, he reenlisted for a term of 6 years.  As 
an option of his reenlistment, he was guaranteed to attend the course for MOS 61F 
(Marine Hull Repairman Course; on 27 September 1978, he was awarded the MOS).



5.  He accepted nonjudicial punishment (NJP) on/in:

*	20 January 1978 for willfully disobeying a lawful order from a superior 
noncommissioned officer (NCO) to prepare for inspection
*	20 February 1980 for failing to go at the time prescribed to his appointed place of 
duty to the transportation company to pick-up a Chief Warrant Two and 
crewmembers
*	March 1980 for, on two occasions, failing to go at the time prescribed to his 
appointed place of duty to the company formation; he appealed and the 
punishment and it was denied
*	9 December 1981 for failing to go at the time prescribed to his appointed place of 
duty to physical training formation
*	27 August 1982, for breaking restriction

6.  On 9 June 1981, his MOS, at the request of the applicant, was reclassified from 61F 
(Marine Hull Operator) to 15D (Lance Missile Crew Member).  His MOS 61F was re-
designated as his secondary MOS.

7.  The applicant’s record contains three counseling forms for repeated lateness, 
missing formations, and failing to prepare for inspection.  On one occasion the applicant 
responded ?How can you write a counseling when personnel is on medication that can 
or possibly make him sleep.?

8.  By memorandum, dated 7 July 1982, the applicant’s platoon sergeant stated:

     a.  He requested the counseling records from the previous platoon sergeant but he 
refused his request.  He verbally counseled the applicant on his absence from 
formations and duty.  In May 1982, he placed the applicant on extra duty, the applicant’s 
attitude and attendance approved for about two weeks.  For the last month the applicant 
routinely missed at least two to four formations per week.  His attitude had deteriorated 
to his lowest level.  On 6 July 1982, the applicant was again absent from morning 
formations and was unaccounted for until 1300 hours, formation; he disappeared again 
at the1600 hours formation.

     b.  The applicant was counseled by him and advised that he was going to 
recommend the applicant for an Article 15, Uniform Code of Military Justice (UCMJ) but 
he seemed unconcerned.  The applicant stated that he wished he could get out of the 
Army; he had been awaiting reclassification of his MOS for so long and he is tired of 
waiting.  The applicant was on permanent profile and awaiting for confirmation from the 
Department of the Army on his request for reclassification.

9.  On 16 July 1982, the applicant’s immediate commander initiated a bar to 
reenlistment against him.  The commander stated the applicant had a long history of 
missing formations and generally not setting good examples.  This had undoubtedly 
been the primary reason for not recommending him for E-5.  He had over 85 months 
total service.  Only in recent months had his pending reclassification been a factor in 
that non-recommendation.  After reading him an Article 15, UCMJ, and prior to 
sentencing, he still missed formations and wore incomplete uniforms.  Based on this, it 
appeared that he lacked the self-discipline necessary to become a professional Soldier 
and maintain his professionalism over a period of time.  On 18 August 1982, the bar to 
reenlistment was approved. 

10.  On 16 September 1982, the applicant’s immediate commander notified the 
applicant that he was initiating separation actions against him under the provisions of 
Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 
13 for unsuitability and he reasons were based on the applicant’s apathy (lack of 
appropriate interest), defective attitudes, and inability to expend effort constructively.  

      a.  The applicant acknowledged he had been notified of the pending separation 
action against him and he had been advised by counsel of the basis for the 
contemplated action, understood his rights, waived consideration of his case before a 
board of officers, and elected not to submit a statement in his own behalf.

      b.  In Armies in Europe (AE) Form 113-R (Recommendation for Separation), the 
immediate commander stated the applicant had been reclassified to 95C (Correctional 
Specialist) as a result of a permanent medical profile.  This action has taken over six 
months and he was equally unqualified for the resultant MOS because of his profile and 
the Article 15s.  He strongly recommended immediate discharge under AR 635-200, 
Chapter 13, in view of his continued lack of self-discipline necessary to become a 
professional Soldier and to consistently maintain that professionalism, an obvious 
mistake in reclassification which will require re-submission and subsequent permanent 
change of station and on the job training; his reductions to E-2, and the short amount of 
time (10 months) before Qualitative Management Program (QMP) (96 months’ time in 
service).  A rehabilitative reassignment was impossible until reclassification actions 
have been completed and in any event there is simply too little time remaining until 
QMP.

      c.  On 20 September 1982, the intermediate commander recommended approval of 
the recommendation for separation.   

      d.  In connection with his administrative separation proceedings the applicant 
underwent a mental status evaluation; the evaluator indicated that he had no significant 
mental illness, was mentally responsible, able to distinguish right from wrong, had the 
mental capacity to understand and participate in board proceedings, and met the 
retention standards prescribed in AR 40-501 (Medical Service – Standards of Medical 
Fitness).  The record is void of a medical examination for separation.  In accordance 
with AR 635-200, a medical examination and mental status evaluation are required for 
members being separated under Chapter 13. 

      e.  On 24 September 1982, the appropriate commander approved the 
recommendation for separation, directing the applicant be issued a General Discharge 
Certificate.

11.  On 8 October 1982, the applicant was discharged under the provisions of AR 635-
200, chapter 13-4a, unsuitability-inaptitude, separation program number (SPN) ?JMD.? 
His service was characterized as under honorable conditions.  He completed 4 years 
and 10 months of net active service this period.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was awarded or authorized:

*	Army Good Conduct Medal (2nd Award)
*	M-16 Rifle Marksman Marksmanship Qualification Badge
*	Pistol (45 cal.) Marksman Marksmanship Qualification Badge
*	Army Service Ribbon
*	Overseas Service Ribbon

12.  The applicant states he enlisted with scoliosis and during the last year of his 
service, he was on profile.  His record shows that he enlisted at the age of 20 years old, 
he accepted five NJPs, he was counseled on three occasions regarding his conduct and 
performance, and he was barred from reenlistment.  He served 4 years and 10 months, 
of his 6-year contractual obligation for which he received the award of two Army Good 
Conduct Medals. 
               
      a.  In regards to the applicant's medical fitness, we are unable to provide what took 
place that resulted in the entrance exam used by the Air Force was used for the 
applicant's entrance to the Army, however, it shows his scoliosis was identified and 
initially diagnosed as "ABNORMAL, marked through as good with remarks that 
condition/defect was "mild".  During his counseling sessions the applicant states implies 
the counseling is unfair because he was on medication that made him sleepy and 
statement of  record submitted to the Commander by the applicants platoon sergeant 
identifies the applicant was on a permanent profile and states the applicant had given 
up and tired of waiting for reclassification of such a long time.  
      
        (1)  Neither his records nor the applicant identify the type of medication he was 
using at the time or if it was prescribed.  We are unable to provide details regarding the 
physical profile referred to by his platoon sergeant, however, the statement was 
submitted 90 days prior to his separation and his record is void of any type of evidence 
that shows the command followed-up to identify the delay in the reclassification action.  
Based on the evidence it is reasonable to believe the delay was associated to his 
medical readiness as it pertained to reclassification into a Special Forces occupation.
      
       (2)  We are also unable to provide specific circumstances as to why his record is 
void of evidence that shows he was properly referred to a physical evaluation board in 
1980 when Army Regulation 40-501 guidance for retention medical standards were 
changed and indicated a member with one or more listed conditions would be referred 
to a physical evaluation board to unfitness or continuance on active duty.  Based on the 
statement from his platoon sergeant indication he had been on permanent profile, it is 
reasonable to believe it was command oversight and/or unfamiliarity with the required 
process, through no fault of the applicant, which potentially jeopardized his rights to 
being processed for disability determination or continued active service and approval of 
his requested reclassification or other mandated reclassification action deemed 
appropriate.  .   
      
13.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s available records in the Armed Forces Health 
Longitudinal Technology Application (AHLTA) and VA’s Joint Legacy Viewer (JLV) and 
made the following findings and recommendations:  The only document found was the 
application submitted by the applicant.  In the application the applicant indicates he was 
given a General Discharge Under Honorable Conditions on 8 October 1982.  The DD 
214 is not available for review, and the circumstances for the characterization of his 
discharge are not available.  The applicant states that he entered the Army with 
scoliosis, and was on profile during his last year in the Army.  Again, there are no 
medical records submitted for review.  The applicant is requesting a discharge upgrade 
to Honorable.  The VA Joint Legacy Viewer electronic medical record was reviewed, but 
contains primarily demographic information and no significant medical information that 
would apply to the applicant’s request.  Therefore, it is the opinion of the Agency 
Medical Advisor, based on the available information, that there is insufficient 
documentation available to warrant an upgrade in the applicant’s discharge at this time.

14 Pertinent References.  

         a.  AR 635-200, Chapter 13, separated Soldiers for unsuitability.  An individual 
separated because of unsuitability will be furnished an honorable or general discharge 
certificate as warranted by his military record

             (1)  Paragraph 13-4a, provided an individual would be subject to separation for 
exhibited behaviors of inaptitude –– inept, due to lack of general adaptability, want of 
readiness of skill, un-handiness, or ability to learn. 

             (2)  Paragraph 13-4c, apathy (lack of appropriate interest), defective attitudes, 
and inability to expend effort constructively.  

         d.  AR 635-5-1 (Personnel Separations – Separation Program Designators) 
provides that SPN ?JMD? is designated for AR 635-200, paragraph 13-4a and SPN 
?JMJ? for paragraph 13-4c.  

         e.  AR 635-200, paragraph 5-3 states the separation of enlisted personnel is the 
prerogative of the Secretary of the Army and will be effected only by his authority.  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. 

         f.  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.  
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.  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.  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.

15.  In reaching its determination, the Board can consider the applicant’s petition and 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.










BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, a bar to reenlistment, the contents 
of his separation packet, the results of medical exam and the reason for his separation.  
The Board considered the review and conclusions of the medical advising official 
regarding the applicant’s claimed medical condition.  The Board found insufficient 
evidence of in-service mitigation to overcome the misconduct that led to the applicant’s 
separation; 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.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
 



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, 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.  At the time of the applicant's enlistment, Army Regulation 40-501 (Standards of 
Medical Fitness) dated 5 December 1960 was in effect.  There were a multitude of 
published changes over time, some of which ARBA does not have in its possession for 
review, however, On 15 July 1987 AR 40-501 was published as an UPDATE and notes 
"Because the structure of the entire revised text has been reorganized, no attempt has 
been made to highlight changes from the earlier regulation dated 5 December 1960.     

      a.  Standards in effect at the time of the applicant's enlistment Section XVII, para -
36 provided for spine, Scapulae, Ribs and Sacroiliac Joints and lists  scoliosis as a 
medical condition and physical defect which causes for rejection for entrance into 
military service in peacetime.  Medical standards for entrance were applicable until 
enlistees completed 4 months of active duty or active duty for training for 
conditions/defects existing prior to original enlistment or induction, now known as 
existed prior to service (EPTS).   

      b.  On 27 May 1976, Retention of Medical Fitness Standards, which were in effect at 
the time the members reenlisted, provided under chapter 3 stated: 

      (1)  "Members with conditions listed under this chapter will be considered unfit by 
reason of physical disability."   A member would not be declared unfit for service due to 
impairments which were known to exist at the time of his acceptance into the service 
and which have remained the same in degree of severity since acceptance and have 
not interfered with performance of effective service.  Members who are believed to be 
unfit or have one or more of the conditions listed will be processed according to Army 
Regulation 40-3 and Army Regulation 635-40 to determine eligibility for physical 
disability or continuance on active duty despite unfitness.  
      
      (2)  Scoliosis was listed as broad general category of medical conditions and 
physical defects which would require medical board action and referral to a physical 
evaluation board.  

     c.  On 15 August 1980, Retention and Medical Fitness Standards was changed and 
provided members with conditions listed under chapter 3 WILL BE REFERRED TO A 
PHYSICAL EVALUATION BOARD. Scoliosis was listed as a medical condition/physical 
defect.  Additionally, at some point the original publication date and the date of Change 
32, scoliosis was listed as an entrance medical condition/physical defect.  

     d.  At the time he was separated regulation provided when a member is being 
processed for separation for reasons other than physical disability, except for a member 
who was previously retained in a limited assignment duty status, should not be referred 
to a physical evaluation board unless his physical defects raise substantial doubt he is 
fit to continue to perform duties.  Any separating member may request, in writing, review 
if he believes he has a medical condition that warrants consideration for disability 
processing.  Lack of motivation for service should not influence the medical examiner in 
evaluating disabilities

3.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, provided for the separation of enlisted personnel from the Regular 
Army.  
   
   a.	An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  Issuance of an honorable discharge certificate is predicated 
upon proper military behavior and proficient performance of duty during the member's 
current enlistment or period of obligated service with due consideration for the 
member's age, length of service, grade, and general aptitude.
   
   b.	Chapter 1, Section VII (Medical Processing states 

   c.	Chapter 13 established policy and prescribed procedures for separating Soldiers 
for unsuitability.  
  
      (1)  Paragraph 13-4a, provided an individual would be subject to separation if he 
or she exhibited behaviors of inaptitude –– inept, due to lack of general adaptability, 
want of readiness of skill, un-handiness, or ability to learn.  

    (2)  Paragraph 13-4c, provided, in pertinent part, an individual would be subject 
to separation if he or she exhibited behaviors of apathy (lack of appropriate interest), 
defective attitudes, and inability to expend effort constructively.  While lack of 
appropriate interest or other defective attitudes may be manifested in conjunction 
with physical defects or mental or organic diseases, including psychoneurosis, these 
traits are not necessarily produced by the physical or disease process.  On the other 
hand, individuals considered for elimination may attempt to excuse immature, 
inadequate, and undisciplined behavior on the basis of minor or non-disabling 
illnesses.  The presence of a physical or mental disease or defect-producing 
impairment of function insufficient to warrant separation under the provisions of AR 
635-40 (Physical Evaluation for Retention, Retirement, or Separation) and related 
regulations is no bar to discharge for unsuitability.  An individual separated because 
of unsuitability will be furnished an honorable or general discharge certificate as 
warranted by his military record.

      c.  Paragraph 5-3 (Secretarial Authority)  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.  AR 635-5-1 (Personnel Separations – Separation Program Designators), in effect at 
the time, provided specific authorities (regulatory, statutory, or other directives) and 
reasons for separation of all member of the Active Army, Army National Guard, and 
U.S. Army Reserve on active duty.  It provided that SPN ?JMD? is designated for 
Regulatory Authority:  AR 635-200 and Reason:  paragraph 13-4a (unsuitability – 
inaptitude) and SPN ?JMJ? for paragraph 13-4c (unsuitability – apathy, defective 
attitude or inability to expend effort constructively).

4.  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 (BCM/NRs) 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 type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  

      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, BCM/NRs 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)	 AR20180014468

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20180014468


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ABCMR Record of Proceedings (cont)	AR20180014468


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