IN THE CASE OF: BOARD DATE: 3 February 2022 DOCKET NUMBER: AR20210013674 APPLICANT REQUESTS: * In effect, the upgrade of his general discharge under honorable conditions to honorable * In effect, removal of "MISCONDUCT," from item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and update missing medical information * Permission to appear personally before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Department of Veterans Affairs (VA) letters * Applicant's military dental records * Applicant's military medical records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he is asking the Board to correct his military discharge and to "record (his) disabilities"; he seeks this so he can continue using VA benefits. The applicant explains that he gained access to VA benefits through marriage, but he and his spouse have separated. Before he proceeds with a divorce, he would like his DD Form 214 to have "MISCONDUCT" removed as the narrative reason for separation and to have his "missing medical information" updated/added to the form. 3. The applicant provides: a. Two VA letters, respectively dated 20 March 2017 and 22 January 2021, which show the following: (1) VA letter, dated 20 March 2017 describes the applicant's entitlement to VA benefits; specifically, the letter shows the following: * An increase in Individual Unemployability Entitlement, effective 1 January 2017 and originally granted on 5 December 2016 * Dependents' Education Assistance (per Title 38 (Veterans' Benefits), chapter 35 (Survivors' and Dependents' Educational Assistance)), and effective 5 December 2016; (entitlement available to dependents of Veterans who are permanently and totally disabled with a 100 percent VA disability rating) * Service-connected disabilities: left lower and right lower sciatic nerve involvement, respectively rated 20 percent; lumbar spine intervertebral disc syndrome with degenerative arthritis, rated 40 percent (2) A 22 January 2021 VA letter, which verifies the applicant's monthly service- connected disability income. b. The applicant's military medical and dental records. Among the applicant's medical records are two DA Forms 3349 (Physical Profile), both dated 27 July 2004. (1) The first DA Form 3349 indicates a doctor (listed as the "Profiling Officer") issued the applicant a temporary profile for the applicant's lower extremity (physical factor "L"), based on the medical condition, "Back Pain." The associated numerical designator is "3" (according to Army Regulation (AR) 40-501 (Standards of Medical Fitness, in effect at the time, "'3' signifies that the individual has one or more medical conditions or physical defects that may require significant limitations"). (2) The second DA 3349, also for "Back Pain," reflects the numerical designator "1" for all physical factors, to include the applicant's lower extremities (per AR 40-501, "An individual having a numerical designation of “1” under all factors is considered to possess a high level of medical fitness"). The profile type is "Permanent," and, unlike the first form, both a "Profiling Officer" and an "Approving Authority" have signed the document. (AR 40-501 stated, "Permanent “3” or “4” profiles require the signatures of 2 profiling officers, one of which is a physician approving authority"). 4. The applicant's service records show: a. On 20 February 2002, the applicant enlisted in the Regular Army for 5 years; the applicant was 19 years old. Upon completion of initial entry training and the award of military occupational specialty 31B (Military Police (MP)), orders assigned him to Germany, and he arrived at his unit, on 20 July 2002. b. On 28 September 2002, the applicant deployed to Kosovo. Effective 20 February 2003, the applicant's leadership promoted him to private first class (PFC)/E-3. On 8 May 2003, the applicant redeployed to Germany. On 30 October 2003, the applicant's chain of command reduced him to private (PV2)/E-2; the applicant's service record does not explain this reduction in rank. c. In or around October 2004, the applicant completed his tour in Germany, and orders reassigned him to Fort Bliss, TX; on 18 November 2004, he arrived at his unit. On 22 February 2005, the applicant participated in a unit urinalysis test, and, on `2 March 2005, the results came back positive for cocaine. On 3 March 2005, the applicant's platoon sergeant relieved the applicant from all MP duties and indicated the command would refer the applicant to the Army Substance Abuse Program (ASAP); (the applicant's service provides no further information regarding his referral to ASAP). d. On 4 May 2005, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine; punishment included reduction to private (PV1)/E-1. e. On 4 May 2005, the applicant underwent a separation physical. (1) On his DD Form 2807-1 (Report of Medical History), the applicant identified a number of medical issues, to include lower back pain. The applicant told the medical examiner (a certified physician's assistant (PA-C)) that doctors had x-rayed his lower back; the PA-C commented that, according to the applicant, the x-ray had showed, "narrowing of the disk (sic) space L5-S1, suggestive of degenerative disk changes, taken in July 2004. In Dec 2004, his (applicant's) MRI (Magnetic Resonance Imaging) was completely unremarkable & ruled that out." (2) The same PA-C completed the applicant's DD Form 2808 (Report of Medical Examination); the PA-C showed the applicant as "Qualified for Service," and listed the applicant's physical profile as "1" for all physical factors, including the applicant's lower extremities. An Army Medical Corps officer also signed the form as a "Reviewing Officer/Approving Authority." f. On 23 June 2005, the applicant's commander advised him, via memorandum, that he was recommending the applicant for discharge under paragraph 14-12c (2) (Commission of a Serious Offense – Abuse of Illegal Drugs), AR 625-200 (Active Duty Enlisted Administrative Separations); the commander's reason was the applicant's wrongful use of cocaine. The commander stated he was recommending the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. g. On 23 June 2005, the applicant signed a form, titled "Waiver to Consult with an Attorney," wherein the applicant acknowledged the command had afforded him the opportunity to consult with an attorney, concerning the pending separation proceedings, but that the applicant had declined. The applicant additionally signed a document showing "consulting counsel" had advised him of the basis for the contemplated separation action, as well as the rights available to him and the effect of waiving those rights. The applicant elected to waive his rights and chose not to submit statements in his own behalf. h. On 12 July 2005, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 12 August 2005, orders discharged the applicant accordingly. The applicant's DD Form 214 shows he completed 3 years, 5 months, and 23 days of his 5-year enlistment contract. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. Per the version of AR 635-200, in effect at the time, commanders were to initiate separation action under chapter 14 when Soldiers had committed serious offenses for which the Manual for Courts-Martial authorized a punitive discharge as a maximum punishment. a. The regulation deemed the abuse of illegal drugs as a serious offense, and the Manual for Courts-Martial, in effect at the time, showed a punitive discharge was an authorized punishment for the wrongful use of controlled substances (including cocaine). b. The regulation further required the separation processing of all Soldiers against whom charges were not referred to a court-martial that was authorized to impose a punitive discharge, or for whom separation action under chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) was not contemplated. c. An under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. 7. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 8. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the application and supporting documentation, the military electronic medical record (AHLTA), the VA electronic medical record (Joint Legacy Viewer (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. AHLTA shows he had multiple visits for low back pain related to a lifting injury in 2002. A permanent profile written 27 July 2004 for “Back Pain” listed the applicant as fully functional. However, it limited him to carrying a maximum of 30 pounds and limited his prolonged standing to 15 minutes at a time. Not only did these limitations prevent the applicant from being able to perform the mandatory functional activity of moving at least 2 miles with a fighting load (48 lbs.), they certainly limited his abilities to perform the duties required of a Soldier in the military police. However, because the profile showed the applicant was fully qualified to deploy, a referral to a medical evaluation board was not made. b. The applicant was counseled on 3 March 2005 for a urinalysis positive for cocaine obtained during his unit's 100% company unit urinalysis inspection on 22 February 2005. He received an Article 15 on 4 May 2005 for this UCMJ violation. c. The applicant underwent a pre-separation mental status evaluation on 28 April 2005. The provider documented a normal examination and diagnosed him with “Substance Related Disorder NOS {not otherwise specified}.” She opined: “There is no evidence of any mental disease or defect which would warrant a disposition through medical/psychiatric channels. SM [service member] reports no suicidal or homicidal thoughts at this time. SM is cleared for any administrative action deemed appropriate by command.” d. His commander referenced the applicant’s cocaine use in his 23 June 2005 memorandums recommending him for and notifying him of his initiation of separation actions under paragraph 14-12c of AR 635-200. On 12 July 2005, the garrison commander directed he be so discharged with an under honorable conditions (general) characterization of service. e. While the applicant had a physical profile which should have led to his referral to a medical evaluation board, his UCMJ violation made the applicant ineligible for referral to as well as continued processing in the Disability Evaluation System. Paragraph 4-1a of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) states: Uniform Code of Military Justice (UCMJ) action. The case of a soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless (1) The investigation ends without charges. (2) The officer exercising proper court-martial jurisdiction dismisses the charges. (3) The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such sentence. f. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his UCMJ violation. g. Review of his records in JLV shows he has been granted multiple VA service connected disability ratings related to his lumbar spine; and that he has not been diagnosed with a mental health condition. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred while in Service. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. h. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. 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 the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation and the reason for his separation were not in error or unjust. 3. The Board found no basis in the regulation governing preparation of the DD Form 214 for adding medical information. The Board determined the applicant's DD Form 214 is correct as currently constituted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could issue an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders could initiate separation action when they determined a Soldier had committed serious misconduct, and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. (1) The regulation deemed the abuse of illegal drugs as a serious offense, and the UCMJ showed a punitive discharge was an authorized punishment for the wrongful use of controlled substances; however, the regulation stated relevant facts might mitigate the nature of the offense. (2) The regulation further required the separation processing of all Soldiers against whom charges were not referred to a court-martial authorized to impose a punitive discharge, or for whom separation action under chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) was not contemplated. (3) An under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. 3. The Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time, showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances (to include cocaine) carried a punitive discharge as a punishment. 4. AR 635-5-1 (Separation Program Designators (SPD)), in effect at the time, stated the narrative reason for separation was linked to the discharge authority. Soldiers separated under paragraph 14-12c (2) received the SPD "JKK"; the associated narrative reason for separation was "Misconduct." 5. AR 40-501 (Standards of Medical Fitness), in effect at the time, required physicians to identify Soldiers with medical conditions that failed medical fitness retention standards, as outlined in chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) of AR 40-501. The regulation additionally stated medical authority should refer these Soldiers into the DES for further evaluation and possible separation (i.e. medical discharge or disability retirement). In addition, medical authority issued Soldiers, who had significant medical conditions that limited their ability to perform military duties, DA Forms 3349 (Physical Profile); these profiles could be either temporary or permanent, and those with the most debilitating conditions carried numerical designators of either "3" (significant limitations) or "4" (severe limitations) for the failing body system(s). 6. Title 38 (Veterans' Benefits), USC, Sections 1110 (Wartime Disability Compensation – Basic Entitlement) and 1131 (Peacetime Disability Compensation – Basic Entitlement), permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. Additionally, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 7. 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 on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony (to include that provided by an applicant), 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. 8. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013674 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1