IN THE CASE OF: 

		BOARD DATE:  20 October 2022

		DOCKET NUMBER: AR20190010357


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 
(UOTHC) characterization of service to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Army Board for Correction of Military Records (ABCMR) Docket AC98-11228
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)
*	congressional correspondence
*	18 exhibits (751 pages) containing in service military medical and personnel 
records, separation documents, letters of reference, employment information, 
extracts from Army Regulations (AR), college transcripts, Department of 
Veterans Affairs (VA) documents, attorney letters, and physician statement

FACTS:

1.  Incorporated herein by reference are military records, summarized in the previous 
consideration of the applicant's case by the ABCMR in Docket Number AC98-11228 on 
10 November 1998.

2.  The applicant states, in effect, he received a vaccination during his enlistment 
processing, and he suffered medical complications as a result of this vaccine. His 
medical complications were the cause of his discharge. He was told that he would 
receive a medical discharge with an under honorable conditions (general) 
characterization of service.

3.  On 18 June 1971, the applicant underwent an entrance examination which found him 
qualified for service with a waiver for being underweight by three pounds. 

4.  The applicant enlisted in the Regular Army on 22 June 1971.

5.  The applicant accepted non-judicial punishment on 16 August 1971, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent 
without leave (AWOL) from 2 August 1971 to 12 August 1971, while assigned to his 
Basic Combat Training unit at Fort Jackson, South Carolina.

6.  His DA Form 20 shows the applicant had 5 periods of AWOL, totaling 499 days. He 
was placed in a deserter status on 22 August 1972. 

7.  Before a summary court-martial on or about 27 August 1971, at Fort Jackson, South 
Carolina, the applicant pled guilty and was found guilty of failing to go to his appointed 
place of duty and breaking restriction. The court sentenced him to forfeiture of pay and 
confinement at hard labor for 30 days.

8.  His record contains a "Chapter 10 Resignation" which shows the applicant was 
charged with the following offenses:

*	AWOL, from 16 November 1971 to 23 November 1971
*	Desertion, from 24 November 1971 to 17 June 1972; and from 21 August 1972 to 
2 May 1973

9.  The applicant consulted with legal counsel on 7 May 1973.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC discharge, and the procedures and rights that were available to him.

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of AR 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, for the good of the service. In his request for discharge, he 
acknowledged his understanding that by requesting discharge, acknowledged he 
understood that if his discharge request was approved, he could be deprived of many or 
all Army benefits, he could be ineligible for many or all benefits administered by the 
Department of Veterans Affairs, and he could be deprived of his rights and benefits as a 
veteran under both Federal and State laws. Further, he acknowledged that he had been 
advised not to accept an undesirable discharge in the expectation that it would later be 
changed to a general or honorable discharge because the likelihood of that ever 
occurring was extremely remote.

	c.  He elected not to submit a statement in his own behalf.

10.  The separation authority disapproved the applicant's request for discharge on 
6 June 1973, under the provisions of AR 635-200, Chapter 10, for the good of the 
service.


11.  On 14 September 1973:

	a.  The applicant underwent a separation physical. His record contains separation 
physicals for separation under AR 635-200, Chapter 10 and AR 635-200, Chapter 13, 
both with the same date. He reported suffering from frequent headaches, eye trouble, 
chronic or frequent colds, sever tooth or gum trouble, pain or pressure in chest, 
stomach, liver, or intestinal trouble, foot trouble, frequent trouble sleeping, and nervous 
trouble. Upon examination, he was found qualified for separation.

	b.  The applicant’s commander notified the applicant of his intent to eliminate him 
from the service under the provisions of AR 635-200 for unfitness. 

	c.  The applicant underwent a mental status evaluation which found he had no 
significant mental illness, and he met the retention standards prescribed in  
AR 40-501(Medical Services-Standards of Medical Fitness) 

12.  Having been advised by counsel, on 17 September 1973, the applicant's 
commander recommended the applicant appear before a board of officers convened 
under the provisions of AR 635-200, chapter 13, to determine whether he should be 
discharged prior to his expiration term of service. 

13.  On 2 October 1973, the approval authority waived the requirement for further 
counseling and rehabilitation and approved the applicant’s discharge for unfitness in 
accordance AR 635-200, paragraph 13-5a, with an Undesirable Discharge Certificate.

14.  On 9 October 1973, the applicant completed a Statement of Physical Condition. He 
indicated that there had been no change in his medical condition since his last 
separation physical.

15.  The applicant was discharged on 9 October 1973. His service was characterized as 
UOTHC. He completed 9 months of net service for the period with 499 days of lost time.

16.  The Army Discharge Review Board (ADRB) denied his request for an upgrade of 
his discharge on 10 October 1984.

17.  Regulatory guidance, in effect at the time, provided that an individual was subject to 
separation for unfitness for various reasons to include frequent incidents of a 
discreditable nature with civil or military authorities. When separation for unfitness was 
warranted an undesirable discharge was normally considered appropriate.

18.  The applicant provides extensive medical records which show, in part:

	a.  An Immunization Record which shows the applicant received smallpox, triple 
typhoid, tetanus toxoid, yellow fever, polis, plague, BIV (illegible) polio triv, and 
meningococcal type C vaccines.

	b.  On 3 November 1993, a medical doctor opined that the plague vaccine that the 
applicant received on 30 July 1971 could explain his positive test for Brucellosis. 
However, he had a history significant for post-streptococcal arthritis since serving in the 
U.S. Army. The physician was extremely disturbed that in the applicant's first encounter 
with the medical personnel, he was given the prejudicial diagnosis of "Puertorrican 
Syndrome; which was known as Acute Conversion Reaction Disorder. If this was in fact 
an accurate diagnosis, there is no evidence; as gathered from the information he was 
provided, that the applicant was ever evaluated by a psychiatrist. 

	c.  A partial, undated letter, from an attorney which contends, in effect that the 
applicant's sick call visits and hospitalizations failed to be properly evaluated by the 
military and his command misinterpreted his illness as lacking the ability to keep up, a 
poor attitude, and a lack of motivation.

	d.  His in-service and post-service medical treatment records which show extensive 
treatment and testing for light-headiness, joint pain, hypotension, dehydration, vertigo, 
chest pains, cardiac dysrhythmia, brucellosis, and arthritis. This list is not all inclusive.

	e.  Documents associated with his appeal to the VA for disability benefits. 

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

20.  MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  

    a.  The applicant is applying to the ABCMR requesting an upgrade his 9 October 
1973 under conditions other than honorable discharge and, in essence, a referral to the 
Disability Evaluation System (DES).  He states: 

“Was discharged due to medical complications related to vaccination received 
from Army upon enlistment.  Was told discharge would be medical under 
honorable conditions.”

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 for the period of Service under 
consideration shows he entered the regular Army on 22 June 1971 and was discharged 
on 9 October 1973 under the authority provided in chapter 13 of AR 635-200, Personnel 
Separations – Enlisted Personnel (5 December 1972): Separation for Unsuitability.  The 
separation program number (SPN) 28B denotes “Unfitness, frequent involvement in 
incidents of a discreditable nature with civil or military authorities.”  It also shows a total 
of 499 days of lost time under 10 USC § 972.

    c.  Medical documents submitted with the application show he was hospitalized for 
treatment of streptococcal pharyngitis in July 1971.  He was also evaluated that month 
for right flank pain and no etiology was identified.  In May 1973, he was treated for a 
dislocated thumb.  The remainder of the medical documentation is from approximately 
1988 thru 1993 and provided no probative information in relation to his 1973 discharge.

    d.  Because of the period of service under consideration, there are no encounters in 
AHLTA and no documents in iPERMS.  

    e.  Part II of his Enlisted Qualification Record (DA Form 20) shows four periods of 
absence without leave (AWOL); 2-11 August 1971, 7-13 September 1971, 16 
November 1971 thru 17 June 1972, and 21 August 1972 thru 1 May 1973.  The 
applicant received an Article 15 for at least two of these periods of AWOL.  

    f.  On 9 May 1973, the applicant voluntarily requested discharge for the good for the 
service under provisions in chapter 10 of AR 635-200.  

    g.  The applicant completed his pre-separation medical evaluation on 15 May 1973.  
On his Report of Medical History, the applicant wrote his present health was “Good.”  
No defects or diagnoses were documented on the accompanying Report of Medical 
Examination and the applicant was found qualified for separation.

    h.  On 4 June 1973, the battalion commander recommended denial of his request 
and recommended trial by general court martial.  The applicant’s request was 
subsequently denied by the commanding general of the United States Army 
School/Training Center and Fort Gordon on 6 June 1973.

    i.  On 14 September 1973, his company commander informed the applicant of his 
intent to initiate separation action under provisions in AR 635-200.  From his statement 
that day:

(1)	“Pvt {Applicant}, entered the service on 22 June 1971.  Since that time, he 
has received a Company Grade Article 15 for AWOL on 6 August 1971, a 
Battalion Grade Article 15 on 25 September 1971 for AWOL, and a Special 
Courts-Martial on 18 October 1971 for Violation of Article 86 and Article 134 
UCMJ. Pvt {Applicant} departed once on 16 November 1971 until 23 
November 1971.  EM {enlisted member} departed again on 24 November 
1971 and remained so absent until on or about 17 June 1972.  

(2)	EM departed AWOL again on 21 August 1972 and remained so absent until 2 
May 1973.  On 14 August 1973, a General Courts-Martial was convened. The 
General Courts-Martial charges covered all three periods of AWOL but was 
dismissed on the grounds that the individual was denied his right to a speedy 
trial. 

(3)	At present, the individual has a total of eight months creditable service since 2  
June 1971.

(4)	I have counseled the individual on 13 September 1973 and find that he does 
not have the motivation or proper. attitude to be of any benefit to the Army.  It 
is my opinion that any effort towards rehabilitation will be unwarranted.

    j.  A mental status evaluation completed on 14 September 1973 documented no 
abnormalities, that the applicant had no significant mental illness, was mentally 
responsible, able to distinguish right from wrong, able to adhere to the right, had the 
mental capacity to understand and participate in board proceedings, and met the 
medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness.

    k.  The applicant also completed a Statement of Physical Condition (DA Form 3082-
R) on 14 September 1973 marking the option denoting there had been no change in his 
medical condition since his prior separation medical examination.  None the less, the 
applicant underwent another pre-separation medical evaluation on 14 September 1973.  
On his Report of Medical History, the applicant wrote his present health was “Poor.”  
However, no defects or diagnoses were documented on the accompanying Report of 
Medical Examination and the applicant was found qualified for Chapter 13 separation.

    l.  His discharge was approved by the commanding general on 2 November 1973.

    m.  Review of his records in JLV shows the applicant has been diagnosed with PTSD 
secondary to MST during basic training in 1971.  At one point, the applicant claimed it 
was also secondary to Vietnam stories from fellow Soldiers, however, the MST is the 
consistent reason cited by providers.

    n.  Based on the information currently available and in accordance with the Liberal 
Consideration guidance, it is the opinion of the Agency that his PTSD fully mitigates his 
periods of absence without leave as this condition is associated with avoidant 
behaviors.  It is the opinion of the ARBA medical advisor that a discharge upgrade is  
warranted.

    o.  Kurta Questions

(1)	Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?	

(a) YES

(2)	Did the condition exist or experience occur during military service?

(a)	YES

(3)	Does the condition or experience actually excuse or mitigate the discharge?

(a)	YES

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined relief was not warranted. The applicant’s contentions, the military 
record, and regulatory guidance were carefully considered.  One potential outcome 
discussed was to grant relief based upon the misconduct involved and the findings of 
the medical advisor.  However, based upon the short term of honorable service 
completed prior to the pattern of misconduct leading to the applicant’s separation, the 
Board concluded that any mitigation for the misconduct was outweighed by the 
misconduct itself.  Therefore, the Board recommended denying the applicant’s 
requested relief.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	: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, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it 
would be in the interest of justice to do so.

2.  AR 635-200 (Personnel Separations - Enlisted Separations) provides:

	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.

	c.  Paragraph 13-5(a), in effect at the time, for separation for unfitness, which 
included frequent incidents of a discreditable nature, sexual perversion, drug abuse, 
shirking, failure to pay just debits, failure to support dependents and homosexual acts. 
When separation for unfitness was warranted an undesirable discharge was normally 
considered appropriate.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army acting through the ABCMR. 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.

4.  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.

5.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) be provided with a copy of any correspondence and communications (including 
summaries of verbal communications) to or from the Agency with anyone outside the 
Agency that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute. ARBA medical advisory opinions and reviews are authored by 
ARBA civilian and military medical and behavioral health professionals and are 
therefore internal agency work product. Accordingly, ARBA does not routinely provide 
copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants 
(and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190010357


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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