IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210006335 APPLICANT REQUESTS: in effect, * Upgrade of his under honorable conditions discharge to honorable * All derogatory records related to uncontrollable behavior expunged from his records * Rank restored APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) letter FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 stated he served his country to the best of his abilities while not knowing that he was suffering from several disabilities. He continued to try and perform his duties until it got so bad that he could no longer control his actions. He thinks that because of his state of mind all records of unacceptable behavior should be reviewed and expunged. He was not afforded any mental evaluations to address his disabilities while on active duty. 3. The applicant provided his VA letter explaining his service connected disabilities and his rated disabilities for each. * major depressive disorder with residuals of traumatic brain injury (TBI) and headaches is granted with an evaluation of 50 percent * degenerative joint disease, lumbar spine is granted with an evaluation of 10 percent * vertigo with tinnitus is granted with an evaluation of 30 percent * sciatica, left lower extremity is granted with an evaluation of 10 percent * sciatica, right lower extremity is granted with an evaluation of 10 percent 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 21 June 1976. He held military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman) and 11B (Infantryman). b. He served in Korea from 19 May 1978 until 16 May 1979 and again from 29 December 1980 until 16 December 1981. c. He received non-judicial punishment (NJP) on 13 December 1978, for on or about 0500 hours, 6 December 1978, wrongfully having in his possession with intent to deceive an Armed Forces Liberty Pass, then well knowing the same to be false. He was reduced to private first class (PFC)/E-3 (suspended for 30 days). d. He reenlisted on 30 May 1980 for a period of 4 years in pay grade E-3. e. His highest rank held was specialist (SPC) and his latest date of rank as SPC was 1 September 1980. f. He received NJP on 22 April 1982, for on or about 1300 hours, 17 April 1982, wrongfully having in his possession one ounce more or less of marijuana. He was reduced to PFC/E-3. He appealed the punishment and on 30 April 1982, the higher appeal authority denied his appeal. g. On 18 May 1982, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him from the Army. The specific reason for the recommended separation is unsuitability under the provisions of Army Regulation (AR) 635-200 (Personnel Separations –Enlisted Personnel), chapter 13 (Apathy, defective attitudes, or inability to expend effort constructively). The applicant acknowledged receipt. h. The applicant was advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of chapter 13, AR 635- 200 and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. * He waived consideration of his case by a board of officers * He did not submit statements on his own behalf * He also waived representation * He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * He further understood that, as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * He may expect to encounter substantial prejudice in civilian life i. He received NJP on 27 May 1982, for on or about 1500 hours, 21 May 1982, and on or about 1800 hours, 22 May 1982, without authority, absent himself from his appointed place of duty. j. His immediate and intermediate commanders recommended he be eliminated from the service before the expiration of his term of service for unsuitability. k. On 4 June 1982, the applicant received a separation examination in which he indicated yes for head injury, skin disease, pain or pressure in chest, tumor, growth, cyst, cancer, and other items. He also underwent a mental status evaluation which indicated normal behavior, fully alert and oriented, level mood, clear thinking, normal thought content and good memory. He had no significant mental illness. He met retention standards under the provisions of chapter 3, AR 40-501 (Standards of Medical Fitness). l. On 17 June 1982, the separation authority approved his discharge under the provisions of AR 635-200, chapter 13 and directed he receive a general discharge. m. Accordingly, he was discharged in the rank of private first class / E-3 under honorable conditions on 28 June 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years and 8 days of active service. His DD Form 214 also shows in Item 4a (Grade, Rate, or Rank): PFC; 4b (Pay Grade): E3, and 12h (Effective Date of Pay Grade): 820422. Item 12 (Record of Service) shows immediate reenlistments this period: 760621-800529 and 800530-820628. It shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Good Conduct Medal * Sharpshooter Marksmanship Qualification Badge (Pistol) * Marksman Marksmanship Qualification Badge (Rifle/Hand Grenade) * Noncommissioned Officer Professional Development Ribbon 5. AR 635-200, chapter 13, in effect at the time provided for separation due to inaptitude, personality disorder, and apathy. The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions. 6. AR 635-5 (Separation Documents) provides that the DD Form 214 will show the active duty rank and grade held at the time of separation. 7. AR 27-10 (Military Justice) provides that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 8. AR 600-8-104 (Military Personnel Information Management/Records) provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Records (AMHRR). A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. 8. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to 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 for which DD Form 214 was not issued) until (date before commencement of current enlistment). 9. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 10. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 11. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of his service record indicate he received behavioral health treatment. His provider completed a mental status evaluation and noted that he met retention standards in accordance with AR 40-501. He completed a separation physical on 4 June 1982 and met retention standards. A review of the VA's Joint Legacy Viewer indicates Major Depressive Disorder (MDD) effective 28 June 2014. His rating for MDD was increased to 100% effective 14 July 2020. There is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. MDD is not a mitigating factor for the misconduct that led to his discharge. 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 liberal consideration of discharge upgrade requests. 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 applicant's claim regarding disabling conditions and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by any medical conditions. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board further determined the records documenting his misconduct and the punishments he received are properly filed in his record and his reduction to PFC was not in error or unjust. The Board concurs with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX 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 making the correction described in Administrative Note(s) below. 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 any relief in excess of that described above. 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): A review of the applicant's records shows his DD Form 214 omitted an entry in the Remarks block. As a result, amend the DD Form 214 by adding to item 18 the entry "Continuous honorable active service from 19760621 to 19800529." 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts). The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions. 3. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's official military personnel file (OMPF) rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR. 4. AR 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627 will be filed in the restricted folder. 5. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to 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 for which DD Form 214 was not issued) until (date before commencement of current enlistment). 6. 38 USC 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. 38 USC 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. 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. 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 based on 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. 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) AR20210006335 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1