IN THE CASE OF:  
BOARD DATE:  8 March 2023 
DOCKET NUMBER:  AR20220004166 


APPLICANT REQUESTS:  An upgrade of his under honorable conditions (general) discharge to an honorable discharge, disability pay, and an appearance before the Board via video/telephone.  

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:  

•DD Form 149 (Application for Correction of Military Record), with an undatedself-authored statement

•right ankle magnetic resonance imaging (MRI) report, dated 6 October 2021

•Privacy Act Release Form for Congressional Liaison, dated 22 April 2022

•Army Review Boards Agency, Congressional Liaison, and Inquiries (CLI),response letter to inquiry, dated 5 May 2022



FACTS:  

1.The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code(USC), 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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.He served in the Army from September 1990 until November 1992 and injured

both his ankles during this time. He received inadequate medical care because, while suffering unbearable pain and seeking help from clinics; he was told to wear an ace bandage, take ibuprofen, and that the pain was all in his head. This pain affected his decision-making, lead to his discharge, and left him ineligible for Veterans Administration (VA) medical care.  b. He suffered this pain from 1992 until 2021. He was informed in 2012 or 2013, by a VA doctor (Dr.) [Dr. ], that he had previously broken both of his ankles. According to Dr. , he is owed disability pay, a higher disability rating, and a discharge upgrade, because he suffered in pain for 30 years.  

c.Thus, he feels, his discharge should be upgraded and he should receive disabilitypay; due to breaking his ankles twice, suffering with the pain during and after service, lack of proper medical care while serving and not having access to proper VA medical care after service, due to ineligibility.  

3.On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) andother mental health issues are related to his request, as contributing and mitigatingfactors in the circumstances that resulted in his separation.

4.The applicant's service record shows:

a.On 29 August 1990, the applicant enlisted in the Regular Army, for a 5-yearservice obligation. Upon completion of training and award of military occupational specialty 93P (Aviation Operations Specialist), he was assigned to Korea. He arrived at his unit on 7 January 1991 and was promoted to Private First Class/E-3, his highest grade held on 29 August 1991. He was reassigned to Fort Carson, CO on 6 February 1992.  

b.On 11 September 1992, the applicant accepted nonjudicial punishment (NJP)under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed, on or about 17 July 1992, 24 August 1992, and 26 August 1992. His punishment included a reduction to private/E-2.  

c.On 15 September 1992, the applicant's company commander counseled him formissing formation on 14 September 1992, and his noncommissioned officer having to get him out of bed. The commander also noted his previous NJP was for the same reasons.  

d.On 16 September 1992, the applicant's commander considered NJP against himunder the provisions of Article 15 of the UCMJ, for failing to go to his appointed place of duty at the time prescribed, on or about 14 September 1992. This form does not indicate if the punishment was completed. However, his commander counseled him on the same day for failing to pay a past due debt and possible elimination for consistently being late; and noting he had received punishment under the UCMJ on two occasions.  

e.On 24 September 1992, the applicant underwent a separation examination,during which he noted he was in excellent health and taking no mediations. He stated he previously had a severe tooth or gum trouble, a head injury, leg cramps, broken bones, tumor growth, weight loss, bone or joint deformity, recurrent back pain and depression or excess worry. He did not disclose specifics of his previous ailments. The examining physician noted; he had a history of some depression, briefly saw counseling, and discontinued; had benign tumor right thigh; and had history of lower back pain treated with Motrin and Robaxin. He was found qualified for separation.  

f.On 7 October 1992, the applicant underwent a mental status evaluation; hisDA Form 3822 (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings, he was mentally responsible, met retention standards, and had no psychiatric disease or defect that warranted disposition through medical channels. 

g.On 3 November 1992, the applicant's immediate commander notified him of hisintent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Paragraph 13, for hisunsatisfactory performance. He noted the applicant's consistent failing to report andfailure to pay just debts, as the specific reasons.

h.On 3 November 1992, the applicant consulted with counsel and was advised ofthe basis for the contemplated actions to separate him, of the rights available to him, and the effect of any action taken to waive those rights. He elected not to submit a statement in his own behalf.  

i.On 3 November 1992, the applicant's commander formally recommended hisseparation, under the provisions of Army Regulation 635-200, Paragraph 13. On 4 November 1992, the separation authority approved the recommended action and directed the issuance of a General Discharge Certificate.  

j.On 17 November 1992, the applicant was discharged accordingly. HisDD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions (general), and he was credited with completing 2 years, 2 months, and 19 days of net active service. He was awarded or authorized the: Army Service Ribbon, National Defense Service Medal, Overseas Service Ribbon, and two marksmanship badges. His DD Form 214 was corrected by DD Form 215 (Correction to DD Form 214) to add the Korea Defense Service Medal.  

5.The applicant provides a self-authored statement as detailed above, a right ankleMRI report, and a Privacy Act Release Form.

6.The Army rates only conditions determined to be physically unfitting at the time ofdischarge which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. As a result, theVA, operating under different policies, may award a disability rating where the Army didnot find the member to be unfit to perform his duties. Unlike the Army, the VA canevaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  

7.Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR)does not mandate relief, but rather provides standards and principles to guide Boards inapplication of their equitable relief authority to ensure each case will be assessed on itsown merits. In determining whether to grant relief BCM/NRs shall consider the prospectfor rehabilitation, external evidence, sworn testimony, policy changes, relative severityof misconduct, mental and behavioral health conditions, official governmentalacknowledgement that a relevant error or injustice was committed, and uniformity ofpunishment. This includes consideration of changes in policy, whereby a servicemember under the same circumstances today would reasonably be expected to receivea more favorable outcome.

8.Published guidance to the BCM/NRs clearly indicates that the guidance is notintended to interfere or impede on the Board's statutory independence. The Board willdetermine the relative weight of the action that led to the discharge and whether itsupports relief or not. In reaching its determination, the Board shall consider theapplicant's petition, available records and/or submitted documents in support of thepetition.

9.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR requesting his under honorableconditions (general) discharge be upgraded to an honorable discharge. He contends he had mental health conditions which mitigated his misconduct.  

b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 29 August 1990; 2) On 11 September 1992, the applicant accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty at the time prescribed; 3) On 16 September 1992, the applicant's commander considered NJP against him for failing to go to his appointed place of duty again. His commander also counseled him on the same day for failing to pay a past due debt and possible elimination for consistently being late; and noting he had received punishment under the UCMJ on two occasions; 4) On 17 November 1992, the applicant was discharged, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions (general). 

c.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. 

d.The applicant asserts he experienced broken ankles while on active service,which caused him pain. The applicant reported his pain “affected my (his) decision-making process and lead to my (his) discharge from the military.” On his application, he noted PTSD and other mental health conditions were related to his request, as a mitigating factors in the circumstances that resulted in his separation. On September 1992, the applicant underwent a separation examination. He noted having a history of depression or excess worry. The physician also noted the applicant had a history of some depression and briefly saw counseling. On 7 October 1992, the applicant underwent a mental status evaluation in relation to his discharge proceedings. He was cleared for administrative action. A review of JLV provided evidence the applicant has been seen by the VA for treatment related to a personality disorder, and the applicant receives no service-connected disability.  

e.Based on the available information, it is the opinion of the Agency BH Advisor thatthere is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct.  

Kurta Questions 

A.Did the applicant have a condition or experience that may excuse or mitigate thedischarge? Yes, the applicant contends he was experiencing mental healthconditions that contributed to his misconduct.



B.Did the condition exist or experience occur during military service?  Yes, theapplicant reports experiencing mental health conditions while on active service.



C.Does the condition experience actually excuse or mitigate the discharge?Partially, there is some evidence the applicant was experiencing depressivesymptoms while on active service. The applicant did have a history of not beingon time to formation, which can be a sequalae to depression.  However, there isno nexus between depression and not paying debts.




BOARD DISCUSSION: 

1.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. The Board carefully considered the applicant's record ofservice, documents submitted in support of the petition and executed a comprehensiveand standard review based on law, policy and regulation, and published Department ofDefense guidance for liberal and clemency determinations requests for upgrade of hischaracterization of service. Upon review of the applicant’s petition, available militaryrecords and medical review, the Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct as there is no nexus between depression and not paying debts. The applicant provided no evidence of service-connected disabilities which would warrant disability payments, or post-service achievements or letters of reference in support of a clemency determination.  

2.The applicant was discharged for unsatisfactory performance and was provided anunder honorable conditions (General) characterization of service.  The Board agreedthat the applicant's discharge characterization is warranted as he did not meet thestandards of acceptable conduct and performance of duty for Army personnel to receivean Honorable discharge.  Based on a preponderance of evidence, the Boarddetermined that the character of service the applicant received upon separation was notin error or unjust.

3.The applicant’s request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.


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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 

Microsoft Office Signature Line...
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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that anapplicant seeking corrective action by ARBA is provided a copy of all correspondenceand communications, including summaries of verbal communications, with any agenciesor persons external to agency or board, or a member of the staff of the agency orBoard, that directly pertains to or has material effect on the applicant's case, except asauthorized by statute.

3.Title 10, USC, Section 1201 provides for the physical disability retirement of amember who has either 20 years of service or a disability rating of
30% or greater.

4.Title 10, USC, Section 1203 provides for the physical disability separation of amember who has less than 20 years of service and a disability rating at less than 30%.

5.Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation fordisabilities which were incurred in or aggravated by active military service. However, anaward of a VA rating does not establish an error or injustice on the part of the Army.

a.  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.  
 
b.  The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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.  
 
6.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires.  
 
7.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD).  
 
a.  Chapter 2, provides physical standards for enlistment, appointment, and induction with the purpose to ensure members medically qualified are medically capable of completing required to training, adapt to a military environment without geographical limitations, perform duties without aggravation of existing physical defects or medical conditions.  
 
b.  The standards in Chapter 2 are applicable to individuals who enlist in the Regular Army - for medical conditions or physical defects pre-dating original enlistment, standards are applicable for enlistee's first 6 months of active duty. It states that enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the physical standards may be separated following an evaluation by an Entrance Physical Standards Board, under the provisions of Army Regulation 635-200, Chapter 5; for Reserve Component and ARNG/ARNGUS members, these standards are applicant during the enlistee's first period of active duty for training (ADT).  
 
8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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. It states, in part:   

a.Only the unfitting conditions or defects and those that contribute to unfitness willbe considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  

b.The PEB-appointed counsel advises the Soldier of the Informal PEB (IPEB)findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the PEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension.  

9.Army Regulation 635-200 sets forth the requirements and procedures foradministrative discharge of enlisted personnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.Chapter 13 provides for separation due to unsatisfactory performance when inthe commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.  

10.On 3 September 2014, the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service BCM/NRs to carefully consider the revised PTSDcriteria, detailed medical considerations and mitigating factors when taking action onapplications from former service members administratively discharged under other thanhonorable condition (UOTHC) and who have been diagnosed with PTSD by acompetent mental health professional representing a civilian healthcare provider inorder to determine if it would be appropriate to upgrade the characterization of theapplicant's service.

11.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole or in part to: mental health conditions, including PTSD;Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberalconsideration to Veterans petitioning for discharge relief when the application for relief isbased in whole or in part to those conditions or experiences. The guidance furtherdescribes evidence sources and criteria and requires Boards to consider the conditionsor experiences presented in evidence as potential mitigation for misconduct that led tothe discharge.

12.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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 maybe warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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, 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 ofservice 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//