IN THE CASE OF: BOARD DATE: 25 February 2022 DOCKET NUMBER: AR20210012952 APPLICANT REQUESTS: His under honorable conditions (general) discharge, previously upgraded by the Army Board for Correction of Military Records (ABCMR) under Docket Number AR20160019123 on 29 April 2019, be further upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum for Record (MFR), dated 11 March 2021 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's cases by the ABCMR in Dockets Number AR20090010867, AR20150012402, and AR20160019123, on 3 December 2009, 23 August 2016, and 29 April 2019, respectively. 2. As a new argument, the applicant states, in effect: a. He never received any non-judicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ). He never received any chapters or court-martials. However, he was treated unjustly with prejudice. b. He had 23 days left on his service contract and did not wish to continue serving after he injured his left knee, which required surgery. He was placed on 30 days of convalescent leave and was ordered to bed rest by his doctors. However, this was not supported by his chain of command. His leadership had him stand in daily formations, despite the doctor’s orders. Ultimately, his knee was reinjured and he needed surgery again. c. The physician who performed the arthroscopic surgery indicated in his medical records that he should be released and compensated at a 30 percent (%) service- connected rate. He was not granted a medical discharge due to the prejudices of his chain of command. He had been recommended for screening by the Central Intelligence Agency (CIA) sniper program, due to him receiving a marksmanship award and trophy for continually maintaining high scores. Despite his good and faithful service, his chain of command treated him unfairly and impartially by not granting him a medical discharge. d. The Commanding General's orders stated that he would receive an other than dishonorable conditions discharge, which he thought meant an honorable discharge. However, when he went to sign his DD Form 214 (Certificate of Release of Discharge from Active Duty), it stated his discharge was under dishonorable conditions. He refused to sign it, so it was retyped to read other than honorable. He signed this discharge, only later realizing he did himself a disservice because it was still dishonorable. His service was nothing less than honorable. This has followed him for 40 years and he needs restitution and this matter resolved. 3. The applicant enlisted in the Regular Army on 1 August 1978. 4. The applicant accepted NJP on 18 December 1978, under the provisions of Article 15 of the UCMJ, for wrongfully possessing .2 grams of marijuana, on or about 7 December 1978. 5. The applicant was formally and informally counseled on at least 10 occasions between 3 May 1980 and 31 October 1980, for numerous infractions including but not limited to: failing to show up for duty; several failure to report/repair (FTR) for formations and assigned details; leaving duty without being properly relieved; failing to obey orders; disrespecting superiors; and uniform and appearance. 6. The applicant accepted NJP on 20 August 1980, under the provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 26 July 1980. 7. The applicant’s service record contains a Physical Profile Board Proceedings that shows he was placed on temporary profile on 24 December 1980. His profile restricted him from running, jumping, or squatting, and required him to walk at his own pace and distance due to a left knee jury and surgery. This form further shows the profile was temporary and expired on 24 January 1981. It does not show this was a permanent profile or that he was recommended for medical discharge for an unfitting condition. 8. The applicant’s commander initiated a bar to reenlistment against the applicant on 4 March 1981, citing three instances of NJP and a pending instance for possession of marijuana for sale. The commander stated the applicant had been continually counseled by his chain of command and showed no improvement despite correctional and disciplinary action. He was provided a copy of this bar but elected not to submit a statement in his own behalf. 9. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 23 June 1981, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for conduct triable by court-martial. He was credited with completing two years, 10 months, and 18 days of net active service and his service was characterized as under other than honorable conditions (UOTHC). He was awarded the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars. 10. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 11. The applicant twice applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 3 December 2009 and 23 August 2016. 12. The applicant again applied to the ABCMR for an upgrade of his UOTHC discharge. The Board granted clemency on 29 April 2019, by upgrading his characterization of service to under honorable conditions (general) based upon his type of misconduct, the passage of time, and the liberal consideration and clemency guidance memoranda. His DD Form 214 was voided and he was issued a new DD Form 214 with an under honorable conditions (general) characterization. 13. Regarding the applicant’s contentions: a. The applicant’s contention that he never received any NJP is incorrect, he accepted punishment under the provisions of the UCMJ Article 15 twice and was pending a third instance when he submitted his request for discharge. b. His record is void of evidence that shows a physician recommended him for separation and/or 30% percent compensation, or a medical board for an unfitting knee condition. However, his record does show he was on a temporary profile after having a left knee injury/surgery but this was not listed as a permanent unfitting condition. c. Furthermore, there is no corroborating evidence to support the contention that his chain of command showed prejudice against him by not approving a physician’s recommendation for medical separation. 14. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination. 15. 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 applying to the ABCMR requesting an upgrade of his 23 June 1981 discharge characterized as under honorable conditions (general). He states is his self-authored letter: (1) “I was injured while serving and had surgery on my left knee. Under doctor’s orders, I was placed on convalescent leave for thirty days. During this period, I was ordered to be on bedrest however, I was not supported by my chain of command. My leadership saw fit for me to stand in formation on a daily basis in spite of my doctor’s orders. Nevertheless, my knee was injured again and surgery performed again. (2) The physician who performed the arthroscopic surgery indicated in my medical records that I be released and be compensated at a thirty percent service connected injury rate. I was not granted a Medical Discharge due to the prejudices of my chain of command were and not supported even with my doctor’s recommendation.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 1 August 1978 and was discharged on 23 June 1981 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 March 1978): Discharge for the Good of the Service – Conduct Triable by Court Martial. c. The is the applicant’s fourth request for a discharge upgrade. His discharge was upgraded from under other than honorable to under honorable conditions (general) with his third application (29 April 2019, AR20160019123). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. d. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. e. No medical documentation was submitted with the application. f. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings, including several related to his knee(s). However, the DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. g. It is the opinion of the Agency medical advisor that an upgrade of his discharge to honorable is not warranted. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review and published DoD 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 medical records and the review and conclusions of the reviewing official. The Board concurred with the medical reviewer finding insufficient evidence of in-service mitigating factors to overcome the misconduct. 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 that the character of service the applicant received upon the ADRB’s review was not in error or unjust and a further upgrade is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :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 to amend the decision of the ABCMR set forth in Dockets Number AR20090010867, AR20150012402, and AR20160019123, on 3 December 2009, 23 August 2016, and 29 April 2019, respectively. 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. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects that may render a Soldier unfit for further military service. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating. It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 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 his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b (1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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// ABCMR Record of Proceedings (cont) AR20210012952 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1