IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220001917 APPLICANT’S REQUEST: * Upgrade of his general discharge under honorable conditions to honorable * 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) * Department of Defense Anthrax Vaccine Immunization Program: Unproven Force Protection, 3 April 2000 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 his command discharged him for refusing to get an anthrax vaccine in 1999. Subsequent to his discharge, Congress held hearings where service members discussed the vaccine, after which Congress published a report and the anthrax vaccinations stopped. 3. The applicant’s service records show: a. On 17 April 1997, the applicant enlisted into the Regular Army for 4 years; when he entered active duty, he was 24 years old and held the rank/grade of specialist (SPC)/E-4. Upon completion of initial entry training and the award of military occupational specialty 11M (Fighting Vehicle Infantryman). Orders subsequently assigned him to Fort Stewart, GA, and he arrived at his unit, on 17 August 1997. b. The applicant's separation packet is unavailable for review; however, the applicant's service record includes his DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows, on 20 April 1999, the Army discharged the applicant from active duty. The DD Form 214 additionally reflects the following: * Item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) – PFC/E-3 * Item 8a (Last Duty Assignment and Major Command) and item 8b (Station where Separated) – an infantry battalion within Forces Command and stationed at Fort Stewart, GA * Item 12c (Net Active Service This Period) – 2 years and 4 days * Item 12h (Effective Date of Pay Grade) – 22 February 1999 * Item 13 – Army Achievement Medal and Army Service Ribbon * Item 24 (Character of Service) – "UNDER HONORABLE CONDITIONS (GENERAL)", under honorable conditions) * Item 25 (Separation Authority) – "AR (Army Regulation) 635-200 (Personnel Separations – Enlisted Personnel), PARA 14-12C (Acts or Patterns of Misconduct – Commission of a Serious Offense" * Item 26 (Separation Code) – "JKQ" (Misconduct) * Item 28 (Narrative Reason for Separation – "MISCONDUCT" 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, on a case-by-case basis, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. 5. 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 in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The absence of the applicant's separation packet means we are unable to determine the complete circumstances that led to his discharge; however, given the availability of the applicant’s record copy DD Form 214, which lists the applicant’s regulatory separation authority, the Board presumes the applicant's leadership completed his separation properly. (1) AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. (2) This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 600-8-104 (Military Personnel Information Management/Records), required case files for approved separation actions to be maintained in the affected Soldiers' official military personnel file (OMPF). b. Per AR 635-200, commanders could initiate separation action against Soldiers who had committed a serious offense, for which the UCMJ showed a punitive discharge (i.e., bad conduct or dishonorable) among its maximum punishments. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. 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/or 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 20 April 1999 discharge characterized as under than honorable conditions (general). He states: “I was discharged for refusing the anthrax vaccine in 1999. After that, Congress held hearings where service members discussed the vaccine with members of Congress. Following those hearings, the anthrax vaccinations stopped.” 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 17 April 1997 and was discharged on 20 April 1999 under the separation authority provided by paragraph 14-12c of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996): Commission of a serious offense. c. No medical documentation was submitted with the application and there are no encounters in AHLTA. d. Neither his separation packet or documentation pertaining to his discharge were submitted with the application nor uploaded into iPERMS. e. Review of his records in JLV show he was initially granted a service-connected disability for a behavioral health condition (depression) on 17 March 2021. 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(s) or action(s) which led to his discharge. g. It is the opinion of the ARBA medical advisor that a discharge upgrade is not warranted. Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO B. Did the condition exist or experience occur during military service? N/A C. Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the limited documentation available related to the applicant’s separation and the findings and recommendations of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service. 2. 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 equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest 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 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 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. 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. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e., bad conduct or dishonorable) discharge. 4. AR 15-185 (ABCMR) states a. The ABCMR decides cases on the evidence of record; it is not an investigative body. In addition, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence. b. An applicant is not entitled to a hearing before the Board; however, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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, 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 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) AR20220001917 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220001917 1 ABCMR Record of Proceedings (cont) AR20220001917 1