IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220010946 APPLICANT REQUESTS: Reconsideration of his prior request for upgrade of his undesirable discharge to a medical separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) [page 1 only] * personal statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160001794 on 1 August 2017. 2. The applicant states it has been 51 years since his discharge. The military destroyed his hearing. He has been treated poorly by the Department of Veterans Affairs (VA), by getting a letter stating that he could use their facilities and then being denied access. 3. The authority granted by Title 10, U.S. Code, Section 1552 (Correction of Military or Naval Records) is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, VA, or any other governmental agency. 4. On the applicant's DD Form 149, he indicates mental health issues as contributing and mitigating factors in the circumstances that resulted in his separation. However, he did not provide a medical diagnosis. 5. The applicant enlisted in the Regular Army on 8 July 1970 for a period of 3 years. He did not complete training and was not awarded a military occupational specialty. 6. He accepted nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ) on 5 November 1970, for being absent without leave (AWOL) from on or about 31 October 1970 to on or about 2 November 1970. 7. Special Court-Martial Order Number 27, issued by Headquarters Command, U.S. Army Training Center, Infantry and Fort Dix, Fort Dix, NJ on 27 January 1972, shows the applicant was found guilty of: * being AWOL from on or about 31 January to 14 September 1971 * being AWOL from on or about 22 September to 30 November 1971 8. His sentence was adjudged on 18 January 1972. His punishment was confinement for 60 days, forfeiture of $150.00 pay for 3 months, and reduction to E-1. The sentence was approved on 27 January 1972. 9. Court-martial charges were preferred against the applicant on 11 August 1972, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 14 March 1972 until on or about 9 August 1972. 10. His record is void of documentation showing he was notified, consulted with legal counsel, and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. However, it is presumed he did so as his intermediate commander forwarded a request for the above action to the separation authority on 20 September 1972. 11. The separation authority approved the applicant's request for discharge for the good of the service on 28 September 1972. He directed the applicant be reduced to the lowest enlisted grade and the issuance of an DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 27 November 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program number 246 (for the good of the service - in lieu of trial by court-martial). His service was characterized as under conditions other than honorable. He was credited with 10 months and 19 days of net active service, with five periods of lost time totaling 551 days. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The applicant petitioned the ABCMR for a discharge upgrade. On 1 August 2017, the Board determined that the merits of the case did not demonstrate a probable error or injustice. His request for relief was denied. 15. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 16. MEDICAL REVIEW: a. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 27 November 1972 discharge characterized as under other than honorable conditions and, in essence, a referral to the Disability Evaluation System (DES) for hearing loss. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 8 July 1970 and was discharged on 27 November 1972 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel: Discharge for the Good of the Service. d. The request for a discharge upgrade was denied by the ABCMR on 1 August 2017 (4R20160001794). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. There is no medical opinion or evidence liberal consideration polices were addressed in that record of proceedings. This review will concentrate on evidence of a potentially mitigating mental health condition, the possibility he had an unfitting medical condition prior to discharge, and new evidence submitted with this application. e. No new evidence was submitted with the application. The prior ROP shows the applicant had several periods of absence without leave, plead guiltily to two of them at a Special Court Martial, and was discharged under chapter 10 of AR 635-200. f. JLV shows the applicant does not receive care at Veteran Hospital Administration facilities and has no diagnoses on his medical problem list. g. 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 multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral of his case to the DES is warranted. Kurta Questions: 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO 2. Did the condition exist or experience occur during military service? N/A 3. Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding that neither a discharge upgrade nor a referral of his case to the DES is warranted. The Board noted the advisory opine found no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501. Furthermore, the Board agreed there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 2. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 10 months and 16 days of net service for this period 10 months and 19 days of net active service, with five periods of lost time totaling 551 days. Additionally, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. 3. The Board determined 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. 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 Board found 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 Docket Number AR20160001794 on 1 August 2017. 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 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the decision has not previously been reconsidered. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. 2. Title 10, U.S. Code (USC), Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute 3. Title 10, USC, Section 1201, provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30 percent (%) or greater. 4. Title 10, USC, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 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. 5. 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. Separation or retirement by reason of disability requires processing through the PDES. a. Paragraph 3-1, provides that the mere presence of an 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. b. Paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Paragraph 4-3 states that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing. Such a case is to be referred to the officer exercising general court-martial jurisdiction. The general court-martial convening authority may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, 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, an under other than honorable conditions discharge was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 7. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 8. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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.) AR20220010946 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1