ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 21 April 2020 DOCKET NUMBER: AR20180015670 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120003808 on 6 September 2012. She requests her under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge, or correction of her records to show she was discharged due to medical reasons. 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), dated 31 August 2018 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 10 June 1971 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 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. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120003808 on 6 September 2012. 3. The applicant states she was stationed at Fort McClellan in 1970. Due to radiation or substances in the air, she was diagnosed with rheumatoid arthritis and she cannot go to a Department of Veterans Affairs (VA) doctor or get a VA card with the type of discharge she received. Her arthritis was due to radiation in the air. She was young and stupid when she wanted to separate. She was in a deep depression due to the death of her grandmother on 5 February 1971. She could not eat, think, or work and she had no desire to pay attention. She was told her discharge would be characterized as undesirable because it was her desire to separate. She is older now and she apologizes for her errors. 4. The applicant enlisted in the Regular Army on 30 September 1970. She completed training as a clerk typist. 5. A statement, provided by a staff sergeant at Headquarters, Simons Army Aviation Command, Fort Bragg, North Carolina on 9 February 1971, reveals the applicant was a member of his office when she was accused of a violation of Article 86 of the Uniform Code of Military Justice (UCMJ). The staff sergeant stated: a. The applicant was assigned to his office for duty on 14 December 1970, for on the job training. Her adaption to the office environment was slow. In view of this, he scheduled the applicant for attendance at the on post personnel clerk school. The class dates were 11 January through 22 January 1971. The applicant was instructed by the staff sergeant to attend the class and upon completion of the class, to return to her duty section. She was released from school on 15 January 1971 and the first sergeant of the Woman's Army Corps (WAC) Company was provided the full report from the education center. b. The applicant was absent without leave (AWOL) from her duty station from 15 January to 22 January 1971. She was counseled by the staff sergeant and the applicant gave no reason for her absence. The applicant returned to work on 26 January 1971. The staff sergeant noted that her work in the section had been very poor and that she had difficulty with getting along with others in the section. c. The applicant was informed of the offense by the chief of the section and the staff sergeant and she was told that repeated acts of this nature would not be tolerated. She went AWOL again on 3 February 1971 and she remained absent from 0730 hours until 0945 hours. On 4 February 1971, she failed to call or report all day from 0730 hours until 1630 hours. The staff sergeant requested that appropriate disciplinary action be taken against the applicant. 6. In a letter from Headquarters and Headquarters Detachment (HHD), 11th Military Police (MP) Group, Fort Bragg, North Carolina, dated 7 April 1971, the company commander notified the WAC Detachment commanding officer that the applicant was assigned to HHD, 11th MP Group on 10 March 1971, after being released from Simons Army Airfield. He stated: a. The applicant was originally assigned to the S-3 Section as a clerk typist and while occupying that position, she performed her duties in a satisfactory manner. Approximately one week after reporting to HHD, she was dispatched to the Reserve Officer Training Corps (ROTC) Department on special duty as a clerk typist. She was released from her duties at the ROTC Department on 25 March 1981 for inefficiency and tardiness by the noncommission officer in charge and reported to HHD on 29 March 1971. b. The applicant had been utilized in the S-4 Section of HHD since her return, performing the duties of clerk typist efficiently; however, she had continually reported late for work, occasionally as much as three hours. The applicant was instructed to telephonically contact the S-4 Section in the event she found that she would be late but she failed to call on several occasions. 7. In a sworn statement, dated 26 May 1971, the WAC Company's acting first sergeant stated that she had been assigned the duty of acting first sergeant since February 1971. The DA Form 2823 (Witness Statement) shows the first sergeant stated that from that time to "present," she had constantly counseled the applicant about her duty and on many occasions she had to personally call for the applicant to report to her, which the applicant failed to do. The first sergeant stated that the applicant's name had been on the daily bulletin many time to report to her or to the commanding officer (CO) for instructions such as reporting to her for daily duty. The applicant failed to do so or would briefly appear and she would have to go look for the applicant. On one occasion, she had to send for the applicant and she had to search the area for her after she had been accused of larceny. 8. The WAC CO provided a DA Form 2823 dated 26 May 1971. She stated the applicant was a member of her unit since 14 December 1970 and that in February 1971, it was reported to her that the applicant was involved in a larceny in the WAC Company. It was also reported that the applicant was being transferred due to her constant failure to repair. Her failure to repair had been continuous and the CO had been unable to complete judicial or nonjudicial action against her because she was not in the company during duty hours and when she was there she hid whenever she saw a member of the cadre coming for her. The CO stated that the applicant committed an offense against the UCMJ daily, thereby making impossible to stop adding charges to her charge sheet. On 12 May 1971 the applicant's CO was able to catch her and she was advised of her rights. She was advised of the type of discharge she would be given and the adverse effects of such a discharge. The applicant was ordered to report to the first sergeant at 1230 hours on that day and she failed to report. On 24 May 1971, she was found hiding in the barracks. The CO stated it was her opinion that the applicant was unfit for military service and since she could not be confined, she should be separated from the service as soon as possible. 9. The applicant was notified on 27 May 1971 that she was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for unfitness, and she acknowledged receipt of the notification. She consulted with counsel and she declined to make a statement in her own behalf. 10. The applicant's commander formally recommended the applicant's discharge on 27 May 1971, under the provisions of Army Regulation 635-212, for unfitness. 11. The separation authority approved the recommendation for discharge on 9 June 1971, under the provisions of Army Regulation 635-212, paragraph 6a(1) and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant's DD Form 214 shows she was discharged on 10 June 1971, in the rank of private/E-1. She received an Undesirable Discharge Certificate. 13. The ABCMR denied the applicant's request for an upgrade of her discharge on 6 September 2012. 14. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. There were no AHLTA, HAIMS nor iPERMS records for review. There were no in-service treatment notes for any medical or behavioral health conditions for review. Although she was seen at the VA several times in November and December 2018 for homelessness, the veteran is not service connected and there are no records affirming a behavioral health or substance abuse diagnosis. b. Notwithstanding the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, there is no documentation to support a behavioral health diagnosis at the time of her discharge. Moreover, depression, which the applicant claims, does not fall within the purview of Liberal Consideration and therefore is not considered mitigating for the offenses which led to separation from the Army. As such, a review of the available documentation did not reveal medical evidence which would support a change or reason for the discharge in this case. 15. The ABCMR has never had a policy for upgrading discharges for the sole purpose of obtaining military benefits. 16. The Board should reconsider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. 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, her record of service, the frequency and nature of her misconduct, and the reason for her 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. 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 to amend the decision of the ABCMR set forth in Docket Number AR20120003808 on 6 September 2012. 12/11/2020 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. 6. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 7. 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//