BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20190014924 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 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 3 October 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 October 1999 * 17 pages of Medical documents and images, dated between 14 May 2016 and 11 December 2017 * three Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), dated 24 March 2019 * five character reference letters 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 he served honorably and his service medical records show that he incurred serious injuries while stationed at Fort Sill, OK, and Fort Carson, CO. 3. The applicant enlisted in the Regular Army on or about 2 April 1997. 4. The applicant accepted non-judicial punishment on 19 May 1998, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between on or about 24 February and 24 March 1998. His punishment included reduction to the rank of private/E-1. 5. A Report of Medical Examination, dated 28 April 1999, indicates the applicant received a physical evaluation for the purpose of separation. He was found qualified for separation. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 May 1999, indicates the applicant was evaluated by a psychologist and was cleared for any administrative action deemed appropriate by command. 7. Charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 8. The applicant's immediate commander notified the applicant on 25 May 1999 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. As the reason for the proposed action, his commander cited the applicant's driving of a motor vehicle on 2 February 1998 and 21 March 1999, while under the influence of alcohol, and his use of marijuana on two occasions in the Spring of 1998. 9. The applicant consulted with counsel on 8 June 1999 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He waived consideration of his case before an administrative separation board contingent upon receiving a general discharge. If the conditional waiver was not accepted, he requested a personal appearance before an administrative separation board. 10. The applicant submitted an undated statement wherein, he stated: * his chapter discharge had nothing to do with his good duty performance * he never had any adverse counseling for not performing his duties * he was asking for medical benefits because he was injured in the military * he was in the process of going to physical therapy and was still healing 11. The applicant's immediate commander formally recommended his separation on 11 June 1999, under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of an UOTHC discharge characterization. 12. The applicant appeared before an administrative separation board on 20 September 1999. The board recommended the applicant’s separation from service with the issuance of an UOTHC discharge, due to commission of a serious offense. 13. The separation authority accepted the board's recommendation, approved the recommended discharge on 24 September 1999, and directed the issuance of an UOTHC discharge. 14. The applicant was discharged on 13 October 1999, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 15. The applicant provides: a. A VA Form 21-4138, dated 24 March 2019, which states he has continued to suffer from severe chronic back pain radiating from the upper part of his back to the lower part of his back. The pain has caused him continuous episodes of sleeplessness. Additionally, he injured his right shoulder and right arm while serving on active duty at Fort Carson, CO. He reinjured his shoulder and right arm and was recommended for surgery while at Fort Carson. b. Orthopedic records, dated between 14 May 2016 and 11 December 2017, which indicate he was receiving treatment for a herniated disc and tear of medial meniscus of knee (right). He was receiving physical therapy for his knee and prolapsed lumbar intervertebral disc. c. Five character reference letters, which attest to his work ethic, leadership skills, and perseverance. 16. The Board should consider the applicant's overall record and statement in accordance with the published equity, injustice, or clemency determination guidance. 17. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the VA electronic medical record (JLV), and the Interactive Personnel Electronic Records Management System (iPERMS). 2. The medical documentation is from 2016 and 2017, and shows he has several health issues, including hypertension, reflux, depression, and low back pain. They also show he underwent right knee arthroscopy in July 2017. No connection was found between these conditions and his period of service other than in a Statement in Support of Claim completed in March 2019, the applicant claims: 1) I injured my entire upper and lower back after being ordered by my superior to lift and carry 100-pound steel storage lockers … and I certify that since that time I have continued to suffer severe chronic persistent recurrent back pain…” 2) I injured my entire right arm the first time while on a military field exercise maneuvers and I tripped and fell while exiting the back entrance of a tank track vehicle I was in. I fell hard and hit the steel corner of the tank trap door and injure my right shoulder and right arm … I reinjured my right shoulder and right arm a second time during my participation in military sports when I landed hard on the ground and my right shoulder muscles and joints just popped out and dislocated from their normal position. 3. A Report on Mental Status Evaluation completed in May 1999: “This individual meets the retention standards prescribed in Chapter3 of AR 40-501 and there is no psychiatric disease or defect which warrants disposition through medical channels. This individual was and is mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings. This individual is cleared for any administrative action deemed appropriate by command.” 4. There is no evidence the applicant had medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Even if such evidence were identified, the applicant’s actions made him ineligible for referral under Paragraph 4-1a of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). 5. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. There is no evidence the applicant had any medical condition which was a contributing factor to his misconduct. There is no condition, mental health or otherwise, which would mitigate his misconduct. It is the opinion of the Agency Medical Advisor that neither an upgrade of his discharge nor a referral of the case to the Disability Evaluation System is warranted. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and further found the letters of reference he provided to be insufficient 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. 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 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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// ABCMR Record of Proceedings (cont) AR20190014924 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014924 7 ABCMR Record of Proceedings (cont) AR20190014924 6