IN THE CASE OF:  

BOARD DATE:  7 April 2020

DOCKET NUMBER:  AR20180015424


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge or correction of his records to show he was 
discharged due to medical reasons.

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 22 October 2018
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 16 January 2002

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 he was pushed out by his chain of command due to misconduct 
charges.  These allegations of misconduct were never proven or fully presented to him 
at the time he was outprocessed and discharged.  He was denied the right to request a 
transfer from his unit, line company and duty station multiple times prior to his 
discharge.  He initially gave up the fight against his chain of command because he had 
no other options available to him and because of the appearance of being "blackballed" 
out of the military.  He has recently started collecting benefits from the Department of 
Veterans Affairs (VA), benefits he was "allegedly" told he would never qualify for, and 
he has found he has service related injuries he was never allowed to claim while he was 
on active duty.

3.  The applicant enlisted in the Regular Army on 16 January 2002.  He completed 
training as a Bradley Fighting Vehicle Systems Mechanic.

4.  The applicant was counseled on 1 July 1999 for receiving a letter of indebtedness.  
His DA Form 4856 (General Counseling Form) shows that on 22 June 1999, he failed to 
make payment arrangements and/or pay his due amount by the day and month set forth 
by the Army and Air Force Exchange Service (AAFES), which resulted in his chain of 
command receiving a notice from the AAFES Deferred Payment Plan department.  
According to the DA Form 4856, the notice clearly showed he had missed two 
payments, with a third payment due on 7 July 1999.  The applicant was reminded that 
during an initial counseling on 8 January 1999, it was explained to him the importance 
of maintaining his finances and paying his bills on time, and of the seriousness of his 
chain of command receiving a letter of indebtedness.  The applicant was told that 
although he had caught up on his payment, waiting until his chain of command to 
receive a notice of delinquency was not the time to pay his bills.  He was also told that 
future occurrences of this type could result in him being recommended for punishment 
under Article 15 of the Uniform Code of Military Justice (UCMJ).

5.  The applicant was counseled on 1 July 1999, for missing the morning accountability 
formation on 28 June 1999.  His DA Form 4856 shows he failed to notify any personnel 
in his chain of command of his whereabouts.  He reported at 0610 hours, at which time 
he told his senior noncommissioned officer (NCO) he had stayed at a friend's house and 
his friend was supposed to wake him up.  The applicant was told that he had no excuse 
and that he was responsible for getting himself up and ready to go at the prescribed 
time.  He was told that as a result of his failure to report, consideration would be given 
as to whether or not he would receive punishment under Article 15 of the UCMJ.  The 
applicant was told that future occurrence of this type would not be tolerated and to 
prevent it from happening again, he should ensure that he reported to all formations at 
least 15 minutes prior to the scheduled time.

6.  The applicant was counseled on at least nineteen separate occasions for the 
following offenses:

*	25 August 1999 – returned checks for insufficient funds
*	30 October 1999 – his arrest by the Police Department and for possession of an 
unlawful weapon
*	16 November 1999 – failure to report to his appointed place of duty at the 
appointed time (0600 work call)
*	12 April 2000 – missing 0630 accountability formation
*	10 May 2000 – disobeying a lawful order given by a senior NCO and for failure to 
follow instructions with the intent to deceive
*	10 May 2000 – associating with a Soldier known to be absent without leave 
(AWOL) and for associating with a Soldier breaking restriction
*	21 February 2001 – financial responsibilities and for a pattern of misconduct
*	27 March 2001 – indebtedness
*	1 May 2001 – failure to pay landlord for services rendered, failure to clean rental 
property to standard after his lease had been terminated, lying to a senior NCO, 
and for providing misleading statement to his chain of command
*	8 May 2001 – payment to a creditor with a check that was returned from 
insufficient funds
*	8 May 2001 – failure to follow instructions given by his chain of command
*	27 August 2001 – adultery
*	17-October 2001 – making a payment by check without sufficient funds, which 
was returned and for failure to pay proper restitution
*	17 October 2001 – responsibility to manage his financial affairs and the 
consequences of poorly managing finances, and for disobeying a lawful order
*	22 October 2001 – lost military identification card and for insubordinate conduct 
toward an NCO
*	28 October 2001 – possible separation from military service under the provisions 
of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, 
paragraph 14-12b
*	8 November 2001 – failure to report by missing 0700 accountability formation 
and for being absent at 0730 work call

7.  The applicant's commanding officer notified the applicant of his intent to initiate 
actions to separate him under the provisions of Army Regulation 635-200,  
paragraph 14-12b, for a pattern of misconduct.  The commander cited the applicant's 
pattern of misconduct consisted of failure to report to his appointed place of duty, 
indebtedness, and disobeying a lawful order as the basis for his recommendation.  The 
applicant acknowledged receipt of the notification on 3 December 2001.  He consulted 
with counsel and his acknowledgement shows he made an election not to submit a 
statement in his own behalf.  

8.  The applicant's commander formally recommended his separation from service 
under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of 
misconduct.  

9.  The separation authority approved a recommended discharge on 20 December 
2001, under the provisions of Army Regulation 635-200, paragraph 14-12c (commission 
of a serious offense), and directed the applicant's service be characterized as under 
honorable conditions.

10.  The applicant was discharged on 16 January 2002, under the provisions of Army 
Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious 
offense.  His DD Form 214 confirms he completed three years, six months, and 22 days 
of net active service this period and that his service was characterized as under 
honorable conditions (general).



11.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the applicant’s 
ABCMR application, the electronic VA medical record (Joint Legacy Viewer) and his 
available military personnel records and made the following findings and 
recommendations:  

	a.  The military electronic medical record (AHLTA) was not reviewed as it was not in 
use during the applicant’s time in service.  No hard copy military or civilian medical 
records were provided for review. 

	b.  The electronic VA medical record (JLV) indicates that the applicant is 70% 
service connected [individual service-connected disabilities are not delineated in the VA 
electronic medical record].  The applicant’s VA Audiology Compensation and Pension 
(C&P) Examination, dated 13 August 2018, noted that the applicant has a sensorineural 
hearing loss in the frequency range of 500-4000Hz in his right and left ears; it was also 
noted that the applicant reported bilateral tinnitus since 2002.  A second C&P 
examination performed on 13 August 2018 found that the applicant met diagnostic 
criteria for: 1) Migraine including migraine variants (ICD: G43.909); 2) Bilateral carpal 
tunnel syndrome (ICD: G56.00); 3) Lumbosacral strain; 4) Patellofemoral pain 
syndrome in both knees; 4) Plantar fasciitis.  A third C&P examination for Mental 
Disorders, completed on 6 September 2018, indicated that the applicant had no mental 
disorder diagnosis.

	c.  No military medical records were available for review.  There is no indication in 
the available military personnel documentation that the applicant failed to meet retention 
standards IAW AR 40-501. 

	d.  Based on the available documentation, the ARBA Medical Advisor concludes that 
there is insufficient evidence of medical or psychiatric disability or condition which would 
support a change to the character or reason for discharge.  There is no documentation 
in the applicant’s available records indicating that he suffered from an unfitting medical 
or psychiatric condition while on active duty as evidenced by the lack of:  1) a 
permanent physical profile for physical or psychological impairment; 2) a diagnosis of a 
medical or psychiatric condition that failed medical retention standards; 3) a diagnosis of 
a disabling medical or psychiatric condition that rendered the applicant unable to 
perform the duties required of his MOS or military grade; 4) a medical examination that 
warranted his entry into the disability evaluation system.  Based upon these findings, a 
referral of the applicant’s case to IDES for consideration of military medical disability is 
not warranted.

	e.  Moreover, it is important to note that: 

		(1) The VA finding of service connection does not automatically result in a 
military medical retirement.  The VA operates under different rules, laws and regulations 
when assigning disability percentages than the Department of Defense (DOD).  In 
essence, the VA will compensate for all disabilities felt to be unsuiting.  The Department 
of Defense, however, does not compensate for unsuiting conditions.  It only 
compensates for unfitting conditions.

		(2) The Department of Defense does not compensate service members for 
anticipated future severity or potential complications of conditions that were incurred 
during active military service.  This is a role reserved for the VA.

12.  The Board should consider the applicant's provided statement 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, regulatory requirements, 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, and the 
character and reason for his separation.  The Board noted the facts presented above.  
The Board found insufficient evidence of in-service mitigation to overcome the 
misconduct and there was insufficient post-service evidence to justify a clemency 
determination.  The Board found the character of service equitable under the 
circumstances.  Based on a preponderance of evidence, the Board determined that 
there was no error or injustice in the applicant’s discharge or character of service, or 
basis for clemency.

2.  After reviewing the application and all supporting documents, the Board found that 
relief is 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, 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.  Title 10, U.S. Code, Chapter 61, provides disability retirement or separation for a 
member who is physically unfit to perform the duties of his office, rank, grade or rating 
because of a disability incurred while entitled to basic pay.

3.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), then in 
effect, provides that for an individual to be found unfit by reason of physical disability, he 
must be unable to perform the duties of his office, grade, rank or rating.

4.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation), paragraph 2-2b, then in effect, provides that when a member is being 
separated by reason other than physical disability, his continued performance of duty 
creates a presumption of fitness which can be overcome only by clear and convincing 
evidence that he was unable to perform his duties or that acute grave illness or injury or 
other deterioration of physical condition, occurring immediately prior to or coincident 
with separation, rendered the member unfit.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.

   a.  Paragraph 3-7a provides that 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.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for misconduct 
when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A 
discharge under other than honorable conditions is normally appropriate for a Soldier 
discharged under this chapter.  However, the separation authority may direct a general 
discharge if such is merited by the Soldier’s overall record.

6.  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)	 AR20180015424

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20180015424


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ABCMR Record of Proceedings (cont)	AR20180015424


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