ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 18 February 2021 DOCKET NUMBER:  AR20200001494 
APPLICANT REQUESTS: in effect, an upgrade of the character of his service from under other than honorable conditions (UOTHC) to a medical discharge, based on his traumatic brain injury (TBI). 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) . Standard Form (SF) 507 (Clinical Record), continuation of SF 516 (Medical Record-Operation Report), undated . CT Scan of Head, Radiology Department, Saint Francis Hospital, Colorado Springs, Colorado, dated 25 February 1982 
. SF 600 (Chronological Record of Medical Care), Medical Clinic, U.S. Army Hospital, Fort Carson, Colorado, for the period 22 February 1982 through 9 March 1982 
FACTS: 
1. 
The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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, in effect, he received an honorable discharge for his initial period of service.  He reenlisted in February 1981, and he subsequently participated in Exercise Reforger in Germany.  He contends that he fell as he exited the truck he was sleeping in and hit the back of his head He had brain surgery to remove a blood clot after he returned from overseas.  He further states that he was a model Soldier and had passed the sergeant/E-5 promotion board with flying colors during the late Spring or early Summer of 1981.  However, after his accident he began to have problems. 

3. 
Having prior service in the Alabama Army National Guard and the applicant was ordered to active duty on 27 April 1979 and directed to report to Fort Jackson, South Carolina. 

4. 
Item 35 (Record of Assignment) of his DA Form 2-1 (Personnel Qualification Record) shows the applicant was reported as “assigned not joined/absent without leave (AWOL) on 27 April 1979. On 26 May 1979, he was dropped from the rolls. Item 21 (Time Lost (Section 972, Title 10, U.S. Code) of this same form confirms the applicant was AWOL from 27 April 1979 to 10 September 1979 (137 days). 

5. 
Item 35 of his DA Form 2-1 further shows that on 10 September 1979, the applicant was returned to military control and assigned to Fort Bragg, North Carolina. He was assigned to Fort Carson, Colorado, on 4 December 1979. 

6. 
Clinical Record-Narrative Summaries, completed on 6 January 1982 show: 


a. The applicant was admitted to the Fitzsimmons Army Medical Center, Fort Carson, Colorado, on 10 November 1981, for severe headaches which began on 7 September 1981, when he fell approximately 12 to 14 feet, suffering a momentary loss of consciousness, while participating in Exercise Reforger in Germany.  He woke with a mild headache and the next day a physician’s assistant diagnosed him with a mild concussion which was treated with Tylenol. As his headaches continued he was treated for post concussive disorder and eventually an Opthalogical examination at Fort Carson, Colorado, on 10 November 1981, reveled massive papilledema with hemorrhages and gorged veins. 
b. On 11 November 1981, the applicant underwent multiple burr holes with evacuation of a large sub-acute sub-dural hematoma, on the right, a negative burr hole exploration, on the left parietal area, and insertion of in intercranial pressure monitoring device in the right temporal area, without complication. He was discharged on 23 December 1981. The applicant provides an undated partial Clinical Record describing the details of the surgery. 
7. 
The applicant provides medical records that show that after undergoing brain surgery, he received follow up treatment for headaches on 22 February 1982, and underwent a CT Scan on 25 February 1982. On 9 March 1982, he had second follow up visit for headaches where he reported having problems functioning at work and home.  He also requested a psychiatric evaluation. The medical official noted the applicant had reported having suicidal ideations and episode of crying for no reason. The applicant had undergone a complete physical and neurological examination upon admission.  He indicated that he did not wish to remain the Army because he was denied a reenlistment bonus. 

8. 
A psychiatrist at the Fort Carson, Colorado USAH, completed a Medical Record-Narrative Summary (Clinical Resume), which shows the applicant was admitted on 14 April 1982 after he reported experiencing destructive urges, destructive behavior, auditory hallucinations, and unexplainable episodes of sadness and anxiety. There 


were no charges pending at the time of the evaluation. The applicant also reported being in good health until he fell from a 5-ton truck, landing on his head but not losing consciousness.  After the fall, the applicant began to experience severe headaches which did not respond to treatment. He was later diagnosed with a hematoma, which was surgically reduced on 11 November 1981.  The psychiatrist stated the applicant – 
. suffered a closed head injury, a subdural hematoma, and post concussive 
syndrome with headache 
. was easily irritated 
. was noise intolerant 
. had auditory hallucinations and unexplained episodes of sadness and anxiety, an 
destructive urges and behaviors 
. was given a referral for management of behavior and further neuropsychiatric 
evaluation 
9. A DA Form 3647 (In Inpatient Treatment Record Cover Sheet), dated 23 April 1982, shows the Chief of Psychiatry, diagnosed the applicant: 
a. 
Axis I – with moderate, chronic, post-traumatic stress disorder (PTSD), manifested by headaches, depression emotional lability, resentment, destructive behavior, alcohol abuse.  His condition had improved with treatment and was determined to be in the line of duty (LOD). 

b. 
Axis I – with chronic, moderate, psychological factors affecting physical condition, manifested by apathy, desire for compensation, invalid psychological testing results, insistence on severe impairment. His condition was untreated, unchanged and determined to be in the LOD. 

c. 
Axis II – no diagnosis. 

d. 
Axis III – post-surgical right subdural hematoma 

e. 
Axis IV – mild routine military duty. 

f. 
Axis V – Fair. 




10. 
A Narrative Summary (Clinical Resume), dated 3 May 1982, shows the applicant was treated for possible seizures and bizarre self-destructive thoughts between 14 April 1982 and 23 April 1982, at Fitzsimmons Army Medical Center.  He reported terrible headaches, breaking things, wanting to drive his car through a trailer, and thinking someone was calling his name as he walked through the barracks. 

11. 
Court-martial charges were preferred against the applicant on 8 June 1982, at Fort Carson, Colorado, for violations of the UCMJ.  His DD Form 458 (Charge Sheet) shows he was charged with the following violations, which occurred on 14 May 1982: 


. attempted murder, by driving at, and running into, Soldier A with an automobile . attempted murder, by driving at Soldier A and attempting to run into him with an 
automobile . committing an assault on Soldier B by striking him in the head with a billiard ball . committing an assault on Soldier B by striking him in the head with a rock 
12. On 5 November 1982, after consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. 
a. 
In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further 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 Veteran’s Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

b. 
He elected to submit a statement in his own behalf; however, his statement is not filed in the record. 


13. 
On 23 November 1982, the separation authority approved the applicant's request for discharge, under the provisions of AR 635-200, Chapter 10, for the good of the service and directed the issuance of an UOTHC discharge. 

14. 
The applicant was discharged on 20 December 1982 in accordance with separation authority’s directive.  His DD Form 214 shows he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 3 years, 7 months, and 24 days of net active service, with no lost time during the period covered (contradicts his DA Form 2-1). Additionally, item 18 (Remarks) of his DD Form 214 shows he completed an immediate reenlistment from 27 April 1979 to 29 January 1981. 

15. 
Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge, in lieu of trial by court-martial. 

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 10 September 1982 discharge characterized as under other than honorable conditions, and in essence, a referral to the Disability Evaluation System (DES).  He states this is warranted given the traumatic brain injury he sustained while on active duty. 
b. The Record of Proceedings and the previous denial detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 27 April 1979 and was discharged on 20 December 1982 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 October 1982), “Discharge for the Good of the Service.” His separation code of KFS denotes this was an administrative separation in lieu of trial by court martial. 
c. 
This request for a discharge upgrade was denied in full on 10 August 2006 (AR20050016189).  Because liberal consideration policies were not in effect at the time of this denial, the review will evaluate the case in light of these policies and new evidence. 

d. 
Because of the period of Service under consideration, there are no encounters in AHLTAs or documents in iPERMS. 

e. 
A discharge summary shows the applicant was admitted to the Fitzsimmons Army Medical Center, Fort Carson, Colorado, on 10 November 1981, for a history of severe headaches.  On 7 September 1981, he had fallen approximately 12 to 14 feet while participating in Exercise Reforger in Germany.  This resulted in a brief loss of consciousness and headaches that did not resolve with conservative treatment. Evaluation the day of admission revealed signs of increased intracranial pressure, and a CT Scan revealed a subdural hematoma.  The hematoma was evacuated the following day.  On 19 November 1981, he was placed on 30 days of covalent leave. When he returned to the hospital for re-evaluation on 18 December 1981, his exam had normalized and he was discharged on 23 December 1981. 

f. 
He continued to have headaches, and was seen by psychiatry on 14 April 1982 for these and his self-reports of destructive urges, destructive behavior, auditory hallucinations, and unexplainable episodes of sadness and anxiety.  He was admitted to the hospital for management of behavior and further neuropsychiatric evaluation.  At the time of his discharge, he had been diagnosed with moderate PTSD, moderate impairment, treated and improved. 

g. 
A charge sheet shows that on or about 14 May 1982 while on Ft. Carson, the applicant was accused with 2 counts of the attempted murder of SP4 S.J.G., one count of assault upon SPC S.J.G., and one count of assault upon PV2 R.E.R.  On 5 November 1982, the applicant voluntarily requested discharge for the good of the service under the provision in chapter 10 of AR 635-200.  The request was approved by the Commanding General of Fort Carson and 4th Infantry Division (Mechanized) on 23 November 1982. 

h. 
Under the policies of liberal consideration, the applicant’s violations of the UCMJ, his attacks on fellow Soldiers, are not mitigated by his PTSD or other mental health conditions. 


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, his injury, 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 and insufficient evidence of post-service conduct or letters of reference in support of a clemency determination.  Based upon the serious and criminal nature of the misconduct leading to the applicant’s separation, as well as the findings of the medical advisor, the Board concluded b a preponderance of evidence,there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service and/or narrative reason for separation. 
The Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately reflect his military service. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 
1. 
The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 27 April 1979 until 29 January 1981.” 

2. 
The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 


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, 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 Army Board for Correction of Military Records (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. 
Army Regulation (AR) 635-5 (Personnel Separations-Separation Documents), dated 5 September 2000, states for enlisted Soldiers with more than one enlistment period 


during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates).  However, for Soldiers who have previously reenlisted 
without being issued a DD Form 214 and are separated with any characterization of 
service except “Honorable,” enter “Continuous Honorable Active Service From” (first 
day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment).  Then, enter the specific periods of reenlistments as prescribed above. 
3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 
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. 
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 and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 


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. 
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