ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 30 July 2021 DOCKET NUMBER: AR20200001426 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20180003580, on 16 July 2019. Specifically, he 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 Provisions of Title 10, U.S. Code, Section 1552), dated 24 January 2020, with self-authored statement * letter of recognition, dated 14 November 1984 * letter of commendation, dated 30 January 1986 * medical records from his period of service, dated April-May 1986 and February 1987 (14 pages) * memorandum, dated 15 January 1987, subject: Request for Medical Evaluation Board (MEB) * DA Form 3822-R (Report of Mental Status Evaluation), dated 18 May 1987 * memorandum, dated 23 December 2019, subject: ABCMR Denial * three character-reference letters FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20180003580 on 16 July 2019. 2. In a separate, self-authored statement, the applicant contends: a. He received the ABCMR's decision regarding his request for an upgrade of his discharge. The ABCMR Board met on 16 July 2019 to discuss the aforementioned case. It was determined that an upgrade was not warranted based upon the pattern of misconduct that led to his separation. The board concluded that there was no error of injustice that would warrant making a change to his characterization of service. He has and will provide evidence not considered at the time of the decision, which may positively influence and persuade the Board to modify the ruling provided in his favor. b. He is officially submitting a request for reconsideration of his application to upgrade the actual general discharge, under honorable conditions, to an honorable discharge. Upon reading the decision, there are several contentions that he will clarify for the record and will provide the documents to support his argument. While in his military career, there are facts that were not mentioned or probably absent from the record that can attest to situations that may warrant reconsideration for the decision rendered. c. The rendered decision listed several non-judicial punishment (NJP) that may be inaccurate or lack the true facts involved in the situation. (1) He will not deny the fact that on 14 September 1984, he wrongfully utilized marijuana and was punished as required. Nevertheless, this action seriously impacted his attitude as well as his behavior as a Soldier. Due to his change in behavior, he received a letter of commendation for an Army Training and Evaluation Program (ARTEP) conducted between the 1st and 4th of November of 1984, for superior performance during this exercise. (2) He was wrongfully charged, on 29 June 1986, with failing to go to his appointed place of duty at the prescribed time because during that period, he was recovering from a surgery on his right knee. He had surgery on 29 April 2019 at Tripler Army Medical Center, and he was in the recovery process from his chronic knee condition. He was always informed that his knee surgeries were the cause for his separation. He even received an identification (ID) card with a service-connected disability status. (a) On 25 March 1987, Chief Warrant Officer Two (CW2) Dxxxx requested the medical board proceedings based on the commander’s request (see consultation sheet attached), which was acknowledged and approved by Dr. Bxxxxxxxx in April 1987. (b) On 18 May 1987, he started the medical board proceedings in order to be released from the military due to his physical conditions after surgery (see Report Medical History attached). Note: that on item #5 of all the medical reports, the reason of the examination was "medical board." d. He was never provided proper discharge counseling and was completely misled as to the reasons for his discharge. As noted in the new evidence submitted, there are discrepancies and incongruence in the facts when the facts are compared to the documents he submitted. At this time, he does not even know what is the "commission of a serious offense" really states or is based upon. e. He also included statements from his former noncommissioned officer (NCO) leaders and peers who worked with him during this period of time at Schofield Barracks, which the Board may want to consider before rendering a decision. Based on all the evidence, and taking in consideration the information submitted, he hereby respectfully requests the decision rendered on 23 December 2019 be reconsidered and modified on his behalf, and that the petition to upgrade his discharge from general under honorable conditions to honorable be granted as requested. 3. The applicant enlisted in the Regular Army on 30 November 1983. 4. The applicant accepted non-judicial punishment on 14 September 1984, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, on or about 13 July 1984. 5. The applicant provides medical documentation, dated between April 1986 and March 1987, which documents his consultation, review, and treatment for a medical condition involving his right knee, including arthroscopic surgery on 3 February 1987. Included in this documentation is a memorandum from his company commander, dated 15 January 1987, in which the commander requests that the applicant be reviewed by an MEB to determine his fitness for further service. The memorandum contains a hand-written endorsement from the battalion surgeon. 6. The applicant's record is void of documentation that confirms his status with respect to his referral to the Army Physical Disability Evaluation System (PDES). 7. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: * on 26 February 1987, for being derelict in the performance of his known duties, on or about 21 January 1987 * on 7 May 1987, for wrongfully using some amount of cocaine, on or about 14 April 1987 8. The applicant's commander recommended the applicant's bar to reenlistment on or about 11 May 1987. The commander notified the applicant that he was being recommended for a bar to reenlistment, based on his record of NJP. The applicant acknowledged receiving a copy of the DA Form 4126 (Bar to Reenlistment Certificate) and further acknowledged that he had been counseled and advised on the basis for the recommendation. He declined making a statement in his behalf. The bar to reenlistment recommendation was approved by the applicant’s battalion commander on 13 May 1987. 9. The applicant underwent a mental status evaluation on 18 May 1987. The relevant Report of Mental Status Evaluation shows he had normal behavior; was fully alert and oriented; had clear thought process; and had normal thought content and good memory. The evaluating physician determined he had the mental capacity to understand and participate in any administrative proceedings and he was cleared for any administrative action deemed appropriate by his Command. The physician noted that the evaluation was conducted for the applicant's medical board review for chronic knee problems. 10. The applicant's commander notified the applicant on 6 July 1987 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c, by reason of misconduct – commission of a serious offense, based on his use of marijuana and cocaine. The commander informed the applicant that he would recommend that the applicant receive a general discharge. 11. The applicant consulted with counsel on the same day and was advised of the basis for the contemplated actions to separate him under Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offence, wrongful use of drugs, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he was issued an under honorable conditions (general) discharge. He acknowledged his understanding and declined to provide a statement in his own behalf. 12. The applicant's commander formally recommended the applicant's separation from service on 14 July 1987, under the provisions of Army Regulation 635-200, Chapter 14, by reason of patterns of misconduct. The separation authority approved the recommended action on 16 July 1987 and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 25 July 1987, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms his service was characterized as under honorable conditions (general). His DD Form 214 further shows he was awarded or authorized the Army Good Conduct Medal. 14. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 16 July 2019, determined he was properly discharged, and denied his request for relief. 15. The applicant provides three character-reference letters that attest to him being a very good Soldier who was always setting the example. He always passed his Army Physical Fitness Test (APFT). When he had surgery to his knee, he was never the same physically. He was great at basketball until his knee surgery and now he can’t walk straight. The unit had him go to the field and perform duties against his doctor’s orders and his profile, which consequently led to him getting hurt again. He tried to reclassify into a different military occupation skill (MOS) so he could stay in the Army but he was told that he was not physically fit for the Army. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 17. 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting an upgrade of his 25 July 1987 discharge characterized as under honorable conditions – general. Different in this request is the addition that he had started a medical evaluation board prior to discharge. He states: (1) “On 25 March 1987, CW2 D. requested the medical board proceedings based on the commander's request (see Consultation Sheet attached), which was acknowledged and approved by Dr. B. on 14 April 1987. (2) On May 18, 1987 I started the Medical Board proceedings in order to be released from the military due to my physical conditions after the surgery (see Report Medical History attached).” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army 30 November 1983 and was discharged on 25 July 1987 under the provisions provided 14- 12c of AR 635-200, Personnel Management – Enlisted Personnel (3 June 1987): Commission of a Serious Offense. d. This request was previously denied in full on 16 April 2019 (AR20180003580). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on the new evidence submitted by the applicant. e. The ROP from AR20180003580 lists the infractions upon which his 14-12c discharge was based: f. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * on 14 September 1984, for wrongfully using marijuana; his punishment consisted in part of a reduction in rank to private/E-1 * on 3 June 1986 (should read 3 July 1986 on the DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ)), for failing to go to the appointed place of duty at the prescribed time on 29 June 1986 * 26 February 1987, for dereliction of duty by negligently failing to ensure the weapons post, guarding an M-60, was properly secured; his punishment consisted in part of a reduction in rank to private first class/E-3 * on 7 May 1987, for wrongfully using an amount of cocaine, and marijuana on or about 14 April 1987; his punishment consisted in part of a reduction in rank to private/E-1 g. Submitted medical documentation shows the applicant underwent an excision of his lateral patellar facet in 1985 for chronic knee pain; and a right knee arthroscopy with partial medical meniscectomy on 29 April 1986. Radiographs obtained on 3 February 1987 showed “Minimal degenerative disease of the knee” and “Deformity of the lateral aspect of the patella suggesting prior fracture or surgical resection.” h. On 15 January 1987, his company commander requested a “Medical Evaluation Board review the condition of SPC {Applicant} to determine his fitness to remain in the service.” i. The applicant was evaluated by orthopedics on 14 April 1987. Following his evaluation, the surgeon concluded: “Would anticipate recovery of strength but because of present MOS and length of present illness, support initiation of medical board. Permanent profile against running and marching.” j. His pre-separation mental status evaluation was completed on 18 May 1987. The psychiatrist annotated a normal examination. k. His commander informed him on 6 July 1987 that he was initiating separation action under paragraph 14-12c of AR 635-200: “The basis for my action is: your misconduct, Commission of a Serious Offense, use of cocaine and marijuana.” His separation was approved by the brigade commander on 16 July 1987. l. The applicant had started an MEB. It is unclear if it was completed, and if so, referral to the PEB would have been placed on hold IAW Paragraph 1-35b of AR 635- 200, Personnel Management – Enlisted Personnel (30 January 1987); and paragraph 4- 1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (13 December 1985). Paragraph 1-35b of AR 635-200: (1) When the examining medical officer decides that a soldier being considered for separation for misconduct (chap -14) or fraudulent entry (chap 7, sec V) does not meet the retention medical standards, he or she will refer the soldier to a medical board ... The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court- martial jurisdiction over the soldier concerned. A copy will also be furnished to the unit commander. The commander exercising general court-martial jurisdiction will direct the soldier to be processed through disability channels per AR 635-40 when it is determined that: (2) The disability is the cause or substantial contributing cause of the misconduct. (3) Circumstances warrant disability processing instead of administrative processing. m. Paragraph 4-1 of AR 635-40: The case of a member charged with an offense, or is under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless a. The investigation ends without charges. b. The-officer exercising proper court-martial jurisdiction dismisses the charge. c. The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. n. There is no evidence the general court martial convening authority approved the continuation of the applicant’s processing in the Physical Disability Evaluation System. m. It is the opinion of the Agency Medical Advisor that neither an upgrade of his discharge nor a referral of the case to the DES is warranted. 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 Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation for the applicant's serious misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, to include the misconduct leading to the applicant’s separation and the findings and recommendation of the medical advisor, the Board determined there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :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 CHAIRPERSON 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Paragraph 3-1 provides that the mere presence of impairment does not, of 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 with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Paragraph 4-3 states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision that authorizes a characterization of service of under other than honorable conditions. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-35 (Disposition through medical channels) provided that when the examining medical officer decides that a Soldier being considered for separation for misconduct (Chapter 14) or fraudulent entry (Chapter 7, Section V) does not meet the retention medical standards, he or she will refer the Soldier to a medical board. If there is no medical board at the examining facility, the Soldier will be referred to the nearest medical treatment facility that does have a medical board. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court martial jurisdiction over the Soldier concerned. A copy will also be furnished to the unit commander. The commander exercising general court-martial jurisdiction will direct the Soldier to be processed through disability channels per Army Regulation 635-40 when it is determined that the disability is the cause or substantial contributing cause of the misconduct, and the circumstances warrant disability processing instead of administrative processing. b. Chapter 3 provided 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. c. Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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//