ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  10 October 2019 DOCKET NUMBER:  AR20190004169 


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 22 February 2019

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 7 October 2002

.six character reference letters

.electronic printout of Texas Department of Public Safety, Criminal HistorySearch, from 22 February 2019



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, the record of events does not honorably reflect theperson he is now.  He has matured in an honorable and moral way.  Since his time withthe military he has become an outstanding citizen of the United States.  He requests anupgrade for his career intentions.  He is seeking to gain employment in lawenforcement; he has completed training successfully but is unable to secureemployment until this is rectified.  He was charged with malingering, which he felt wasnot his intention.  He enlisted and in good faith, asks for a review of his documents toshow he is a person of moral aptitude.

3.The applicant enlisted in the Regular Army on 12 February 2002.

4.The applicant's service records show that during his enlistment physical examination,on 20 December 2001, no previous problems were noted pertaining to his knees,ankles, legs, or back.
5.While attending One Station Unit Training (OSUT) at Fort Knox, Kentucky, theapplicant was seen at sick call, physical therapy, and in the Nuclear Medicine clinics onat least 13 different occasions between 6 March 2002 and 9 August 2002, for problemswith his knees, legs, ankles, and back.

6.The applicant accepted non-judicial punishment (NJP) on 14 August 2002, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for dereliction ofduty on or about 5 August 2002, by failing to participate in training.  His sentenceincluded a suspended rank reduction in rank/grade to private/E-1.  This suspension wasvacated on 15 August 2002.

7.The applicant's service record contains a DA Form 2627 (Sworn Statement), dated15 August 2002, given by Master Sergeant W, non-commissioner officer in charge(NCOIC), which states:

This statement is in regards to PVT H_.  PVT H is a refusal to train assigned to B Trp 5-15 CAV.  He was originally assigned to B Trp during our Feb thru Jun  2002 cycle.  During this cycle he started complaining of leg and lower back pain.  He was sent on sick call to be checked.  He spent a great deal of time going on  sick call and spent most of the cycle on profile prior to his assignment to the  PTRP.  PVT H_ was assigned to the PTRP due to his consistent complaining  about knee and lower back pain.  PVT H_ has been evaluated very thoroughly  and given every benefit of the medical treatment system to include physical  therapy and a (whole body) bonescan.  The Troop was made aware of possible  malingering by PVT H on 27-Mar-2002 when Chief K_ one of the PAs assigned  to Nelson Clinic wrote on PVT H_ sick slip that the unit should consider a fit for  duty/ malingering charge.  On 1-Apr-2002 PVT H_ underwent a whole body  bonescan.  This bonescan was interpreted by N_ COL/MC on 4-Apr-2002.  This exam was found to be unremarkable no deficiencies. COL N_   recommendation to unit was a fitness for duty/ Malingering charge.  Upon   returning to B Trp during our new cycle starting on 10-Jul-2002 PVT H_ went on  sick-call complaining of lower body pain.  This was prior to his PARTICIPATION  in ANY physical training.  On 15-Jul-2002 he was seen at Orthopedics by  S_ Jr. CPT/Ortho.  He was a return to duty with no profile.  On 2-Aug-2002 PVT  H_ again went on sick-call and returned with an RTD.  On 5-Aug-2002 PVT H_  refused to train on Benevidez night infiltration course claiming that he was   physically unable to do the training.  On 6-Aug-2002 PVT H_ was seen by O_ MAJ/MC for a second opinion.  At this point PVT H_ told the doctor that he  had medical records outlining a previous injury and treatment.  PVT H_ was  given a profile to ''allow him to obtain copies of his medical records documenting  pre-existing medical condition, otherwise proceed with administrative action for  malingering".  Since PVT H_ has refused to train I have spoken to him on a daily basis.  He was provided the opportunity to contact his home and request any  documentation supporting his claim of previous injury on 6-Aug-2002.   
Additionally on 14-Aug-2002 at 1100 he was supposed to go with the Troop  Senior Drill Sergeant to contact his home as no medical records had been   received thus far by the unit.  He did not get to make this call as he failed to let  the Training NCO know that he was to meet the Senior Drill Sergeant at 1100.   He instead went to chow.  On 15-Aug-2002 during conversations with PVT H_,  he denied having had any x-rays or bonescan done by the Army and that he was just being singled out because of one doctor.  This however is not true as his  medical records document the fact that he had a whole body bonescan and all  the other measures the Army has gone thru to verify whether PVT H_ is injured.  On 15-Aug-2002 I personally contacted the Kelsey Sebold Medical Center in  Houston, TX trying to verify if PVT H_ had been treated there as claimed and  what we needed to do to have a copy of his records faxed to our medical   treatment facility.  The records clerk was unable to find any record of a H_  having received treatment at their facility.  However their records only go back  until 1999.  After hanging up I again spoke to PVT H_.  I asked PVT H_ how long ago it had been that he was seen at that particular medical facility.  He stated  that he could not remember.  At that point PVT H_ informed me that his records  would not be under the name H_ but, G_. I found the fact that he had not let  anyone know this, rather odd as he is claiming that these previous injuries are  why he refused to train yet he has not been particularly concerned with getting  them.  The only reason he originally mentioned having supposedly been injured  is that he was trying to convince a doctor that he should be medically boarded  out of the Army.  He was informed at that time that if he provided the  documentation that his records would be reviewed and he might be medically  boarded.  /////////// I/////// I// I I////// I /End of ////I//////////////// I I//// I// I/// I// 

8.Court-martial charges were preferred against the applicant on 19 August 2002, forviolations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he was triedbefore a summary court-martial, on or about 4 September 2002, and was convicted ofthe following:

.dereliction of duty, from on or about 15 August 2002 through on or about19 August 2002, by willfully failing to participate in military occupational specialty(MOS) 19D (Cavalry Scout) training

.feigning back and knee pain for the purpose of avoiding 19D CavalryScout/OSUT, on divers occasions from on or about 27 March 2002 through on orabout 6 August 2002



9.The applicant's commander notified the applicant on 23 August 2002 of his intent toinitiate separation actions under the provisions of Army Regulation 635-200 (PersonnelSeparations – Enlisted Personnel), paragraph 13-2, for unsatisfactory performance.  Hiscommander informed him that he would recommend he receive an under honorableconditions (general) discharge.

10.The applicant consulted with counsel on 23 August 2002 and was advised of thecontemplated actions and their effect and of his available rights.  He acknowledged theproposed separation actions.  He was advised he could submit any statements hedesired in his own behalf and indicated he wished to do so; however, he did not providea statement.

11.The applicant's commander formally recommended his separation under theprovisions of Army Regulation 635-200, paragraph 13-2a, by reason of unsatisfactoryperformance.  He listed the following as specific reasons for the recommendation forseparation: the applicant's demonstrated inability to respond to performance counselingand meet the Soldierization requirements necessary to graduate from 19D OSUT; histotal lack of motivation and commitment necessary to complete the requirements of thiscourse; his goal to get out of the Army and he refusal to train and abuse of sick call; andhis being a liability and distraction to his unit and the United States Army.

12.The applicant was placed in confinement for 30 days on 4 September 2002, due tohis court-martial conviction on 19 August 2002.  He was released from confinement on27 September 2002.

13.The separation authority approved the applicant's discharge on 2 October 2002,under the provisions of Army Regulation 635-200, Chapter 13.  He directed that hereceive a general discharge, and not be transferred to the Individual Ready Reserve, ashe had not completed the requirements to be awarded a 19D MOS.

14.The applicant was discharged on 7 October 2002.  The DD Form 214 he wasissued shows he was discharged under the provisions of Army Regulation 635-200,Chapter 13, by reason of unsatisfactory performance, and his service was characterizedas under honorable conditions.

15.The applicant petitioned the ADRB for an upgrade of his discharge.  The ADRBconsidered his petition and denied his request on 2 September 2009.

16.The applicant provides six support letters, wherein the authors attest to theapplicant's positive character attributes in both his personal and professional life.  Theynote he has been driven to complete college and maintain a stable work history whilebeing a dedicated husband and father.  He is dependable, responsible, and honest, andwould be a good police officer.  He further provides an electronic printout from theTexas Department of Public Safety Criminal History Search, from 22 February 2019,which shows he has "No Matching Records."

17.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.


BOARD DISCUSSION: 








1.The Board noted that the applicant was given full consideration by his command asevidenced by the witness statement given by his NCOIC.  He was given both medicalconsideration and rehabilitative training consideration.  The Board also noted that hewas given a court-martial where he had the benefit of legal counsel and opportunity topresent evidence in his behalf.  The Board noted that he was given fair and proper dueprocess in his separation to include both medical and mental evaluation which foundhim fit.2.A review of the applicant’s military record shows that his command gave fullconsideration to his age, length of service, grade, aptitude, physical and mentalconditions, and the standards of acceptable conduct and performance of duty whendetermining his character of discharge.  As evidenced by the applicant’s record, hisservice was not sufficiently meritorious to warrant an honorable discharge and hisgeneral under honorable discharge is proper and equitable and contains no error orinjustice.  The Board considered the previous review by the ADRB that determined thathis general under honorable conditions discharge was proper, equitable, and fair.3.The applicant stated that the discharge issued to him in 2002 is not who he is todayas a basis for upgrading his character from general under honorable conditions tohonorable. The Board considered the letters of reference and supportingdocumentation provided by the applicant.  Based on a preponderance of evidence, theBoard did not find any injustice or inequity in the applicant’s discharge or character ofservice warranting relief as a matter of clemency

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

After review of the application and all evidence, the Board found no error or injustice in the applicant’s general discharge.  The Board agreed that the applicant’s general discharge characterization is appropriate and equitable considering his conduct at the time and his record of service. 



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.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.   
 
 a.  Paragraph 3-5 provides that characterization at separation will be based upon the quality of the Soldier’s service, including the reason for separation and guidance in paragraph 3–7.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the UCMJ, directives and regulations issued by the Army and the time-honored customs and traditions of military service.  Characterization may be based upon a pattern of behavior or upon a significant single incident as defined by regulation and military law.  Due consideration will be given to the Soldier’s age, length of service, grade, aptitude, physical and mental conditions, and the standards of acceptable conduct and performance of duty. 
 
 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.  Paragraph 3-7b provides 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 
 
 c.  Chapter 13 provides the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.  (See paragraphs 3–5 and 3–7.) 
 
3.  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//