ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF:   BOARD DATE:  11 June 2020 DOCKET NUMBER:  AR20190014422 


APPLICANT REQUESTS: 

.his bad conduct discharge (BCD) be upgraded to under honorable conditions(general) or honorable

.his narrative reason for separation be changed to show he was medicallyseparated for physical disability



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 27 September 2019

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 4 November 2019

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 19 January 1989



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 on:

a.The punishment he received at discharge was too harsh.  It was much worsethan most people got for the same offense.  His discharge was based on many offenses but they were mostly minor offenses.  His record of court-martial conviction indicates only isolated or minor offenses.  He also feels that his command abused its authority when it decided to discharge him and decided to give him a BCD.  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a BCD.  His average conduct and efficiency rating/behavior and proficiency marks were good.  He received awards and decorations and his record of promotions shows he was generally a good Soldier.  He has been a good citizen since his discharge.  He feels his discharge should have been for medical reasons.  There are 
medical reports that note his back condition at the time of discharge was quite severe. His P-3 profile should have been submitted for consideration of a medical discharge. 

b.He should have received a medical discharge because of his severe backcondition that warranted a medical discharge not a BCD.  He is now a completely changed person and has been drug free following his discharge.  He has been a professional truck driver for 24 years and has gone through extensive background checks and passed many drug tests.  He is married and is a minister, having fought back from the mistakes he made 30 years ago. 

3.The applicant enlisted in the Regular Army on 10 April 1986.

4.The applicant accepted nonjudicial punishment (NJP) on 14 October 1987, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful useof marijuana, on or between 15 August and 16 September 1987.

5.General Court-Martial Order Number 7, issued by Headquarters, 2nd ArmoredDivision (Forward) on 3 May 1988, shows the applicant was found guilty of wrongful useand distribution of marijuana in hashish form, on or about 26 October 1987.  Therecommended sentence included his confinement for two years, forfeiture of all pay andallowances, and separation from service with a BCD.

6.The convening authority approved the findings and sentence on 3 May 1988, andexcept for that part of the sentence extending to the applicant's separation with a BCD,directed it to be executed.  The convening authority also directed that the execution ofthat part of the sentence adjudging confinement in excess of six months and forfeituresin excess of total forfeiture of all pay and allowances for six months, be suspended forone year, at which time, unless the suspension is sooner vacated, the suspended partof the sentence would be remitted without further action.  The record of trial wasforwarded to the U.S. Army Court of Military Review for appellate review.

7.The U.S. Army Court of Military Review affirmed the findings and sentence on20 September 1988.

8.The applicant was placed on involuntary excess leave for the period 12 August 1988to 19 January 1989.

9.The applicant was discharged on 19 January 1989.  The DD Form 214 he wasissued shows he was discharged under the provisions of Army Regulation 635-200,(Personnel Separations – Enlisted Personnel), Chapter 3, and his servicecharacterization was bad conduct.
10.The applicant's record documents no acts of valor, significant achievement, orservice warranting special recognition.

11.The applicant has not provided and the available records do not contain anydocumentation showing a service-connected back injury or a profile for his back.

12.The applicant's discharge was the result of his court-martial for the serious chargeof distribution of a controlled substance not for isolated or minor offenses.  Further, therecommendation for confinement and forfeiture of pay is not shown to be unduly harshin light of the convening authority's reduction of these punishment from two years tosix months.

13.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service.  The Army disabilityrating is to compensate the individual for the loss of a military career.  The VA does nothave authority or responsibility for determining physical fitness for military service.  TheVA may compensate the individual for loss of civilian employability.

14.Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation fordisabilities which were incurred in or aggravated by active military service.  However, anaward of a VA rating does not establish an error or injustice on the part of the Army.

15.Title 38, Code of Federal Regulations, Part IV, defines the VA Schedule for RatingDisabilities (VASRD).  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge.  As a result,the VA, operating under different policies, may award a disability rating where the Armydid not find the member to be unfit to perform his duties.  Unlike the Army, the VA canevaluate a veteran throughout his or her lifetime, adjusting the percentage of disabilitybased upon that agency's examinations and findings.

16.The Board should consider the applicant's statement in accordance with thepublished 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 dischargeupgrade requests.  The Board considered the applicant’s statement, his record ofservice, the frequency and nature of his misconduct, the absence of medical evidenceshowing a condition that failed medical retention standards and the reason for hisseparation.  The Board found insufficient evidence of in-service mitigation to overcomehis serious misconduct.  The Board considered the applicant’s statement, but foundinsufficient supporting evidence of post-service achievements or letters of reference fora favorable clemency determination.  Based on a preponderance of evidence, the Board
determined that neither the applicant’s character of service or the reason for his separation were in error or unjust. 

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

BOARD VOTE:

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XX :XXX 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


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. 

ADMINISTRATIVE NOTE(S): 

Not Applicable 




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.Title 10, USC, Section 1201, provides for the physical disability retirement of amember who has either 20 years of service or a disability rating of 30 percent (%) orgreater.

3.Title 10, USC, Section 1203, provides for the physical disability separation of amember who has less than 20 years of service and a disability rating at less than 30%.

4.Title 38, USC, Section 1110 (General – Basic Entitlement) provides that for disabilityresulting from personal injury suffered or disease contracted in line of duty, or foraggravation of a preexisting injury suffered or disease contracted in line of duty, in theactive military, naval, or air service, during a period of war, the United States will pay toany veteran thus disabled and who was discharged or released under conditions otherthan dishonorable from the period of service in which said injury or disease wasincurred, or preexisting injury or disease was aggravated, compensation as provided inthis subchapter, but no compensation shall be paid if the disability is a result of theveteran's own willful misconduct or abuse of alcohol or drugs.

5.Title 38, USC, Section 1131 (Peacetime Disability Compensation – BasicEntitlement) provides that for disability resulting from personal injury suffered or diseasecontracted in line of duty, or for aggravation of a preexisting injury suffered or diseasecontracted in line of duty, in the active military, naval, or air service, during other than aperiod of war, the United States will pay to any veteran thus disabled and who wasdischarged or released under conditions other than dishonorable from the period ofservice in which said injury or disease was incurred, or preexisting injury or disease wasaggravated, compensation as provided in this subchapter, but no compensation shall bepaid if the disability is a result of the veteran's own willful misconduct or abuse of alcoholor drugs.

6.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial that cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision. 
 
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides that: 
 
 a.  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.  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.  A Soldier will be given a BCD only pursuant to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.   
 
9.  The Manual for Court-Martial Table of Maximum Punishment provides that violation of Article 112a wrongful distribution of Schedule I, II, and III controlled substances (including marijuana) carries a maximum punishment of a dishonorable discharge, confinement for 15 years, and total forfeiture of pay and allowances. 
 
10.  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. 
 
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