ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  31 July 2020 DOCKET NUMBER:  AR20190014713 


APPLICANT REQUESTS:  The applicant requests an upgrade of his Chapter 10 undesirable discharge.     

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge)

.Veterans Affairs (VA) rating decision letter dated 10 August 2011



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states his DD Form 214 reads under conditions other than honorable.He would like to get it upgraded so that he may be buried at Camp Butler NationalCemetery.  Please consider changing his character of service.  He does not understandbecause when he was discharged it was supposed to be a medical discharge.  He is aveteran with full benefits and he is currently dying from cancer, it was later discoveredthat have this [cancer] because of the time that he spent in the service.  There is also aseparation program number (SPN) code that he did not and still to this day does notunderstand.

3.On 20 August 1968, the applicant enlisted in the Regular Army for a period of 3years.

4.On 30 December 1969, the applicant accepted non-judicial punishment (NJP) underthe provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absentinghimself from his unit in Korea on 27 December 1969.  His punishment consisted ofreduction to pay grade E-2, restriction, and extra duty for 14 days.
5.On 12 June 1970, he accepted NJP under the provisions of Article 15 of the UCMJfor violating a lawful order and a lawful regulation.  His punishment consisted ofreduction to pay grade E-2, forfeiture of pay, extra duty, and restriction.

6.On 11 July 1970, he accepted NJP under the provisions of Article 15 of the UCMJ forfailing to be present for bed check as ordered and posted by means of a company letter,and failing to be at his appointed place of duty.  His punishment consisted of reductionto pay grade E-1, restriction, and extra duty.

7.His record shows he served in the Republic of Vietnam from on or about31 December 1970 to 16 October 1971.

8.On 21 May 1971, court-martial charges were preferred against the applicant for:

a.Disposing of “A Rations”, military property of the United States, by driving hiscompany mess truck into a Vietnam village and unloading “A Rations”, and giving them to unknown Vietnamese Nationals.  

b.Wrongfully having in his possession a habit forming narcotic drug (heroin).

9.A Report for Suspension of Favorable Personnel Actions indicated on 30 September1971, the applicant was admitted to the 85th EVAC Hospital.  He was diagnosed withhepatitis, and he would be medically evacuated to CONUS; the time was unknown.

10.On 1 October 1971, the applicant was reduced to pay grade E-1.

11.A Headquarters, United States General Leonard Wood Army Hospital letterindicated the applicant was hospitalized as a result of the effects of a disease asdistinguished from injury, which was considered directly caused by, and immediatelyfollowing his intemperate use of habit forming drug, “Diagnosis Code – 304”.  His lengthof hospitalization was from 14 to 28 October 1971.  The Morning Report entry wasrequired to reflect the above period as “Bad Time with Line of Duty as LD – No, due toown misconduct (NLD: DOM)”.

12.The applicant’s record did not contain a complete discharge packet; nevertheless,his record contained a DD Form 214 that shows on 11 November 1971 he wasdischarged under the provisions of Chapter 10, Army Regulation 635-200 (PersonnelSeparations – Enlisted Personnel), and issued an Undesirable Discharge Certificate.His character of service was listed as “under conditions other than honorable”, and hisSPN Code was listed as “246” (discharge for the good of the service).  He completed 3years, 2 months, and 8 days of net active service, and he had 14 days of lost time.  Theapplicant was awarded or authorized the:

.National Defense Service Medal

.Armed Forces Expeditionary Medal

.Republic of Vietnam Service Medal with 1 bronze service star

.Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

.Overseas Service Bar

.Sharpshooter Qualification Badge with Hand Grenade Bar



13.In support of his case, the applicant provided a VA ratings decision letter thatshows he received a 100 percent disability rating for liver cancer associated withleiomyosarcoma, effective 15 June 2011.

14.Army Regulation 15–185 (Army Board for Correction of Military Records), theregulation that governs and prescribes the policies and procedures for correction ofmilitary records by the Secretary of the Army, acting through the Army Board forCorrection of Military Records (ABCMR).  In pertinent part, it states that the ABCMRbegins its consideration of each case with the presumption of administrative regularity.The ABCMR will decide cases based on the evidence of record.  It is not aninvestigative agency.

15.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  Chapter 10 of that regulation provides, in pertinent part, that a member whohas committed an offense or offenses for which the authorized punishment includes apunitive discharge may submit a request for discharge for the good of the service in lieuof trial by court-martial.  The request may be submitted at any time after charges havebeen preferred.  The issuance of a discharge under the provisions of Army Regulation635-200, Chapter 10, required the applicant to have requested from the Army –voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial.  It ispresumed that all requirements of law and regulation were met and the rights of theapplicant were fully protected throughout the separation process.  The applicant hasprovided no information that would indicate the contrary.  An under other than honorableconditions discharge is normally considered appropriate for a Chapter 10 discharge,although an honorable or general discharge is authorized.  Further, it is presumed thatthe applicant’s discharge accurately reflects his overall record of service.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 

16.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.
17.A VA finding of service connection does not necessarily result in a military medicaldisability rating.  The VA operates under different laws and regulations than theDepartment of Defense (DOD).  In essence, the VA will compensate for disabilities feltto be unsuiting.  The DOD, however, only compensates for conditions it determines tobe unfitting.  Indications of an unfitting condition while on active duty are evidenced by:1)a permanent physical profile for physical or psychological impairment; 2) a diagnosisof a medical or psychiatric condition that failed medical retention standards IAW AR 40-501, Chapter 3; 3) a diagnosis of a disabling medical or psychiatric condition thatrenders an applicant unable to perform the duties required of his/her MOS or militarygrade; and 4) medical examination that warranted entry into the disability evaluationsystem.

18.Army Regulation 40-501  Medical Services- Standards of Medical Fitness, dated 05Dec 1960, the regulation governing medical examinations in effect at the time of theapplicant’s service, states that only a mental evaluation is required for enlisted membersbeing processed for separation under provisions of chapter 10 of AR 635-200.

19.Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, orSeparation) establishes the PDES according to the provisions of Title 10, U.S. Code,chapter 61, Retirement or Separation for Physical Disability, and Department ofDefense Directive 1332.18.

a.It states that, the mere presence of an impairment does not, itself, justify a findingof unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating.  To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501.  These guidelines are used to refer a Soldier to an MEB.   

b.Paragraph 4-1 states in the case of a Soldier charged with an offense under theUCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charges; the officer exercising proper court-martial jurisdiction dismisses the charges; or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. 





19.Title 10, U.S. Code, chapter 61, provides for the retirement and discharge ofmembers of the Armed Forces who incur a physical disability in the line of duty whileserving on active or inactive duty.  However, the disability must have been the proximateresult of performing military duty.  It further provides for disability retirement orseparation for a member who is physically unfit to perform the duties of his office, rank,grade, or rating because of disability incurred while entitled to basic pay.20.The ABCMR does not consider requests for upgrade of discharges solely for thepurpose of making the applicant eligible for veterans' benefits; however, in reaching itsdetermination, the Board can consider the applicant's petition, service record, andstatements in light of the published guidance on equity, injustice, or clemency.21.Based on the applicant's contention the Army Review Board Agency medical staffprovided a medical review for the Board members. See "MEDICAL REVIEW" section.

MEDICAL REVIEW: 

The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents provided and the information in the VA's Joint Legacy Viewer (JLV).  Due to the period of time of the applicant's service there are no records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or Health Artifacts Image Management Solutions (HAIMS).  The following findings and recommendations are made:  The applicant is requesting an upgrade in his discharge from under other than honorable conditions to under honorable conditions.  He asserts that he is dying from liver cancer and desires to be buried in a veteran’s cemetery.  He enlisted in the Army on 20 August 1968.  While serving in South Korea he was charged under the provisions of Article 15 of the UCMJ for being AWOL on 27 December 1969.  The applicant accepted NJP on 30 December 1969 consisting of a reduction in grade to E-02 and extra duty for 14 days.  The applicant was again charged under the provisions of Article 15 of the UCMJ for failing to be present for bed check and failing to be at his appointed place of duty while serving in Vietnam.  He again accepted NJP on 11 July 1970 consisting of a reduction in grade to E-01, restriction, and extra duty.  On 21 May 1971 court-martial charges were preferred against the applicant for supplying “A rations” to unknown Vietnamese nationals, and the wrongful possession of heroin.  The applicant apparently became ill while being processed for these charges, and on 30 September 1971 he was admitted to 85th Evacuation Hospital with the diagnosis of acute hepatitis that was initially felt to be directly related to IV heroin use.  He was medically evacuated from Vietnam to the Ft. Leonard Wood Army Hospital where he remained hospitalized 14-28 October 1971.  The applicant was separated from the Army on 11 November1971 IAW AR635-200, Chapter 10, with a character of service “under conditions otherthan honorable” and a separation (SPN) code of 246 (discharge for the good of theservice).  On 15 June 2011 the applicant was awarded a disability rating of 100% for




liver cancer/leiomyosarcoma.  The examining VA Physician concluded that the disease was not directly due to the applicant’s IV heroin use, but more likely due to herbicide exposure during his service in Vietnam according to a rating decision memorandum dated 9 December 2010.  There are no medical records available for review from the applicant’s period of service, and no documentation stating that the applicant was exposed to herbicides while serving in Vietnam.  The applicant’s medical condition does not mitigate the behaviors that resulted in the circumstances of the applicant’s separation from the Army.  However, based on the type of cancer the applicant is currently diagnosed with, it is more likely than not that it is the result of a toxic exposure such as herbicides know to have been used during the conflict in Vietnam.  Furthermore, the applicant’s hepatic disease was identified prior to his separation from the Army.  Therefore, based on the available information and the determination of the VA, it is the opinion of the Agency Medical Advisor that the applicant’s medical condition likely resulted from a toxic exposure while serving in Vietnam. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the Medical Advisory Opinion, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error or injustice.  There is insufficient evidence that the applicant’s liver cancer/leiomyosarcoma, or Hepatitis C that caused his liver condition at time of service, mitigated the serious misconduct that resulted in the discharge characterization.  Furthermore, per regulation, in the case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charges; the officer exercising proper court-martial jurisdiction dismisses the charges; or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.  Therefore, the applicant would not have been referred for medical processing while in service.  However, the cancer/leiomyosarcoma has been service connected by the VA.  The VA is properly treating the applicant for his service-related conditions.  Therefore, the Board found insufficient evidence to upgrade the characterization or grant the applicant a medical discharge.  Based on the applicant’s misconduct and a preponderance of evidence, the Board determined that the characterization is not in error or unjust.
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:  :  :  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 Army Board for Correction of Military Records(ABCMR) to excuse an applicant's failure to timely file within the three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases based on the evidence of record.  It is not an investigative agency. 
 
3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. 
 
 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. 
 
4.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), provides a listing of all medical conditions and specific causes for referral to an MEB.  It states:  
 
 a.  The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve.  The medical conditions and physical defects, individually or in combination, are those, that:  
 
          (1)  Significantly limit or interfere with the Soldier's performance of their duties.  
 
  
 
          (2)  May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service.  This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring.  
 
          (3)  May compromise the health or well-being of other Soldiers. 
 
          (4)  May prejudice the best interests of the Government if the individual were to remain in the military Service.  
 
 b.  Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB.  Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service.  Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB.  
 
5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18.  It states:  
 
     a.   The mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating.  To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501.  These guidelines are used to refer Soldier to an MEB.  
 
 b.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  
 
 c.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  An enlisted soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore this rule does not apply.  The presumption of fitness may be overcome if the evidence establishes that:  
 
           (1)  The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  
 
          (2)  An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.   
 
 d.  The fact that a Soldier has a condition listed in the Department of Veterans Affairs schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty.  
 
     e.  The regulation provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 
 
6.  Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.  It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.   
 
7.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.   
      
 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, BCM/NRs 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//