ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20180015602 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge due to medical conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), received on 29 October 2018 * DA Form 8-275-3 (Clinical Record Cover Sheet), date 18 April 1970 * DA Form 8-275-3, admission date 17 August 1970 * DA Form 8-275-3, admission date 25 September 1970 * Standard Form (SF) 93 (Report of Medical History), dated 2 January 1974 * SF 180 (Request Pertaining to Military Records), dated 22 October 2018 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 his discharge should be upgraded so he can receive all of the benefits that military men should receive. He would like for the Board to consider his application and to accept his apology for his actions during his time serving in Vietnam, Korea, and any other place that he was assigned to on the day he regretted his actions. An upgrade is necessary because of medical reasons and benefits that can help him and his family live a better life. When he was released from the military, he was released with a sickness called trichomonas, urinary tract infection, urethritis, chronic, and that condition has progressed over time. 3. The applicant was inducted into the Army of the United States on 28 August 1968. He completed training as aircraft maintenance repairman. 4. The applicant's DA Form 8-275-3 shows that he was assigned to Company E, 702nd Maintenance Battalion, 2nd Infantry Division, Korea on 18 April 1970, when he 1 was hospitalized 12 days. He was diagnosed with a urinary tract infection and trichomonas. He was returned to duty on 30 April 1970. 5. The applicant was honorably discharged on 9 June 1970, for the purpose of immediate enlistment in the Regular Army. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed one year, nine months and 12 days of net active service this period. He enlisted in the Regular Army on 10 June 1970. 6. The applicant's DA Form 8-275-3 shows that he was assigned to the same company in Korea on 17 August 1970, when he was hospitalized for four days. He was returned to duty on 21 August 1970 after being diagnosed and treated with the following conditions: * urethritis, chronic, due to gonococcus * diarrhea * hemorrhoids 7. The applicant's was assigned to the same company in Korea on 25 September 1970. His DA Form 8-275-3 shows he was hospitalized for 3 days and was diagnosed with diarrhea and urethritis. He was returned to duty on 28 September 1970. 8. The applicant arrived in Vietnam on 11 May 1971. He departed Vietnam on 18 March 1972 and he arrived at Fort Bragg, NC on 19 April 1972. 9. The applicant accepted nonjudicial punishment (NJP) on 15 May 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave from on or about 30 April 1973 to on or about 7 May 1973. His punishment consisted of a reduction to the rank/grade of specialist/E-4 and 30 days extra duty. He was advised that he had 72 hours after receipt of his Article 15 to make any appeal he may have desired to make. 10. The applicant submitted an appeal to his Article 15 on 18 May 1873. In his appeal he provided the following explanation: a. On the morning of 28 April 1973, he had a pass and he went to Georgia to visit his wife and child. When he arrived, he found his wife and child were missing. After waiting at home for about two hours, he decided to look for them and to inquire as to their whereabouts. He learned from a neighbor that they were keeping his child and his wife left a message informing him that she was "not ever" and for him to take custody of his child. His child was only 14 months old. b. Not expecting what he found, he was quite upset and very much discontented and concerned. He felt like a complete stranger because he was in his wife's hometown. His wife's family and friends were very reluctant to talk to him and the fact that it was the end of the month and he had not been paid did not help matters. c. He did not have any success in finding his wife and knowing that he was only on a weekend pass, he knew he had to get in touch with his unit to inform his first sergeant of his problem. He called his company and was told that the numbers of his company commander and his first sergeant could not be given out. He received the number of his platoon sergeant and when he reached his platoon sergeant he told him of his problems and he asked that his problem be communicated to his first sergeant. His platoon sergeant told him that he would take care of it and judging by his statement, he had the understanding that he was granted the time off to take care of his problem. d. When he arrived back at his unit, all of his personal belongings were missing from the room in which he lived. He inquired about his belongings and was told that since he had been AWOL for one week all of his things had been inventoried and turned in to the supply room. Shortly thereafter he was read his rights. He was later told to go pick up his gear, take it back to the billets, and place it in his locker. e. Four days later, he was told he had been AWOL and that he had to see the battalion commander. Two days later he reported to the battalion commander and he explained his problem. After listening to the reason why he was being charged with being AWOL, his battalion commander informed him that his punishment was to be reduced one grade and 30 days extra duty. f. He believed that his punishment was very severe, especially considering the fact that he did not believe that he was actually AWOL. He was experiencing financial difficulties and a grade reduction would only cause matters to become worse. Since it was his first offense, he believed that the reduction and the extra duty was unjustifiable in his case. 11. The Chief Military Justice, Judge Advocate General Corps stated on 31 May 1973, that in consideration of the applicant's appeal, in his opinion, the Article 15 Proceedings were conducted in accordance with law and regulations and the punishments imposed were neither unjust nor disproportionate to the offense committed. However, in view of the compelling extenuation presented as to the reason for the AWOL, and since he had five years of good service including a tour in Vietnam and Korea, the Chief Military Justice recommended that the applicant's reduction be suspended for six months. 12. The superior acting on the appeal granted the applicant's appeal in part on 5 June 1973. He determined that the applicant's reduction in grade would stand and that portion of the punishment concerning performance of extra duty for 30 days would be suspended for 90 days, at which time, unless sooner vacated it would be remitted without further action. The superior acting on the appeal noted that the applicant's previous record was considered. The applicant was notified of the determination made in his case on 6 June 1973. 13. A Notice of Return of U.S. Army Member from Unauthorized Absence shows the applicant went AWOL on 25 June 1973 and he remained absent until he surrendered to military authorities on 16 January 1974. 14. Court-martial charges were preferred against the applicant on 17 January 1974 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 25 June 1973 until on or about 16 January 1974. 15. The applicant's consultation with legal counsel is not available. However, the available records show that on 18 January 1974, he voluntarily requested discharge 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. 16. As part of his request for discharge, the applicant submitted a statement in his own behalf and he acknowledged that he was making his statements voluntarily, knowingly, and of his own free will. He stated: a. His attitude towards the Army was that he did not believe that there was anything better to serve with or in. b. His personal assessment of rehabilitation potential was that he was a Soldier and could be retrained but could not accept being trained while confined. c. His attitude towards the type of discharge he would receive if his application was approved was that an undesirable discharge would hurt not only his self but his family. However, rather than be sentenced for what he had to do, he would rather accept an undesirable discharge. 17. The separation authority approved the applicant's request for discharge on 4 February 1974 and directed that he be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate). 18. The applicant was discharged on 13 March 1974, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 shows he completed four years, 11 months and 13 days of total active service, his service was characterized as UOTHC, and he was issued an Undesirable Discharge Certificate. 19. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 20. The applicant provides three DA Forms 8-275-3 showing that while he was in Korea he was treated for (a.) urinary tract infection, (b.) trichomonas, (c.) urethritis, chronic, due to gonococcus, (d.) diarrhea, and (e.) hemorrhoids. A review of the applicant's records fails to show that from the time of his last release from the infirmary back to duty on 28 September 1970, he suffered from or was treated for any of these conditions or for any unfitting conditions that would have warranted his processing for discharge through medical channels. 21. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant’s iPERMS records and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant, with primary MOS 45J20 Aircraft Armament Repairman, is requesting a discharge upgrade from Under Other Than Honorable Conditions to Honorable due to medical conditions. He stated that when he was released, he had Trichomonas, Urinary Tract Infection, Urethritis, Chronic which has progressed over time. Records show treatment as follows: * 18 Apr 1970 for Urinary Tract Infection and Trichomonas * 17 Aug 1970 for Chronic Urethritis, due to gonococcus; Diarrhea; and Hemorrhoids * 25 Sep 1970 for Diarrhea; and Urethritis None of the treatments for these conditions impact performance beyond the hospital stay and convalescence--the record shows the profile remained unchanged. The Reverse of Standard Form 93 (Report of Medical History) dated 2? Jan 1974 (second number of the date was illegible) shows that the applicant disclosed treatment for Chronic Uritaritus (Urethritis) and in response, the provider notated “No residual Disability”. JLV search revealed that the applicant is not service connected. The small portion of medical separation paperwork that is available for review, does not indicate ongoing medical concerns at the time of discharge. In addition, the veteran’s post military treatment record does not establish a nexus between the conditions for which he was treated while in service and his current active list of medical conditions. Since military discharge, the applicant has been diagnosed with Major Depressive Disorder, Recurrent, Moderate, due to the crib death of his infant 20 years ago (27Dec2018 VA North Texas Mental Health note). Anxiety Disorder, Unspecified; and Stress, Not Elsewhere Classified have since been added to his problem list (09Jul2019). However a PTSD diagnosis was not found in the record. Of note, PTSD screening was also not found. After reviewing all of the available information and in accordance with published Department of Defense liberal consideration guidance, the reviewer notes that the applicant’s behavioral health condition to include Major Depressive Disorder, Anxiety Disorder and Stress conditions, does not fall within the purview of the guidance. The applicant did not have mitigating medical or behavioral health conditions for the offenses (AWOL on 2 occasions), which led to his separation from the Army. In addition, none of the applicant’s in service conditions necessitated significant duty limitations and/or permanent profiles. Therefore, IAW AR 40-501, the applicant did not have any conditions that failed medical retention standards. As such, referral to the Army DES for consideration of medical disability is not indicated at this time. 22. The ABCMR has never had a policy for upgrading discharges for the sole purpose of obtaining military benefits. 23. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion 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, the charges against him, his request for discharge and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct or the presence of medical conditions that failed to meet medical retention standards. 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 :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. X CHAIRPERSON 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 states 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. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provides that a member who has committed an offense or offenses 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. Although an honorable or general discharge is authorized, an undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. 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//