IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220002142 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of the DD Form 149 * DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 April 1996, and 22 April 1998 * Post-service medical records (4 pages) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) 4 pages FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he requests an upgrade because he suffers from headaches, tinnitus, shoulder, and knee pains. 3. The applicant’s record shows: a. He enlisted in the Army National Guard (ARNG) on 8 August 1995. He entered active duty for training on 5 November 1995. He completed initial entry training and was awarded military occupational specialty (MOS) 77W (Water Treatment Specialist). He was released from active duty on 20 April 1996 and was transferred to his ARNG unit. His DD Form 214 for the period shows the character of service as uncharacterized (this is addressed in the administrative notes below). b. The applicant enlisted in the Regular Army on 22 January 1997. c. Between 6 February 1997 and 8 January 1998, the applicant was formally counseled on 30 occasions but not limited to nine for below average performance, six for missing formation, four for disobeying a lawful order, four for failure to repair, two for poor job performance, leaving his weapon unsecured, leaving sensitive equipment unsecured, and disrespect to a General Officer. d. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 6 August 1997 for failure to follow a lawful general order by leaving his weapon unsecured. e. The applicant's immediate commander notified him on 11 February 1998, of his recommendation to discharge him under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(b) for a pattern of misconduct. He acknowledged the notification on 12 February 1998. d. The applicant consulted with legal counsel on 7 March 1998. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He elected not to submit a statement in his own behalf. e. Service medical records provided by the applicant report treatment on: * 12 January 1998, for allergic conjunctivitis * 11 February 1998, for headaches and congestion and afforded the diagnosis of a head cold. f. On an unspecified date, the applicant's immediate commander formally recommended his separation from service under the provisions of AR 635-200, paragraph 14-12(b), and recommended that the applicant receive a waiver for rehabilitation transfer to a different unit. g. On 17 March 1998, the applicant’s battalion commander recommended he receive an honorable discharge with the chapter 14-12(b) separation. h. On an unspecified date, the appropriate authority approved the discharge recommendation and directed the applicant's characterization of service to be Under Honorable Conditions (General) and he is not transferred to the Individual Ready Reserve. i. The applicant was discharged on 22 April 1998, in the pay grade of E-2. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, paragraph 14-12B, for misconduct and his service characterization was under honorable conditions (General). He was credited with 1 year, 3 months, and 1 day of net active service for the period. j. The Army Discharge Review Board denied the applicant's request for an upgrade on 8 August 2014. 4. The applicant provides: * Post-service medical records that show treatment on 5 February 2012 for right shoulder and knee pain spanning 6 years. * A Notice of Disagreement with the VA dated 9 June 2014, for their denial-of- service connection for a bilateral knee condition, bilateral shoulder condition, dental condition. 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. 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 an upgrade of his 22 April 1998 discharge characterized as under honorable conditions (general) and, in essence, a referral to the Disability Evaluation System (DES) and. He states: “I am requesting an upgrade due to the fact I suffer from headaches, tinnitus, and shoulder & knee pains.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows he entered the regular Army on 22 January 1997 and was discharged on 22 April 1998 under the separation authority provided by paragraph 14- 12b of AR 635-200, Personnel Separations – Enlisted Personnel (26 June 1996): Pattern of Misconduct. c. Medical documentation submitted with the application shows the applicant was seen twice for an upper respiratory tract infection and once for right shoulder and bilateral knee pain, all of which were treated conservatively. There were no encounters in AHLTA. d. The applicant received thirty (30) negative counseling statements from 11 Feb 1997 thru 9 January 1998. He had received an Article 15 on 6 August 1997 for wrongfully leaving his assigned M16A2 rifle in his barracks room while he went to eat dinner at the dining facility. e. On 11 February 1998, the applicant’s company commander informed him he was recommending he be separated from the service under paragraph 14-12b of AR 635- 200. His reasons were “you have disobeyed lawful orders, your several counts of dereliction of duty, and your numerous incidents of FTR (failure to repair). The initiated separation action was later approved by the brigade commander. 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) and the actions which led to his discharge; 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. g. Review of his records in JLV show he does not have a diagnosed mental health condition. He does have a 10% service-connected disability rating for limited flexion of each knee. However, the DES compensates an individual only for service incurred medical 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. 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 neither a discharge upgrade nor a referral of his case to the DES is warranted. BOARD DISCUSSION: 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 request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct with a general, under honorable conditions character of service. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion 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 separation was not in error or unjust. 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTARTIVE NOTE(S) He completed a period of active duty while conducting initial entry training (IET). He was awarded a MOS at the completion of IET and was transferred back to the ARNG. Army Regulation 635-200 provides that when a RC Soldier successfully completes IADT, the character of service is Honorable unless directed otherwise by the separation authority. Please reissue him a DD Form 214 for the period ending 20 April 1996 showing the character of service as Honorable. REFERENCES: 1. Title 10, United States Code, 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, paragraph 3–9 provides a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— a. Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. b. HQDA (AHRC–EPR–F), on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. c. The Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-12b (A pattern of misconduct) states a Soldier may be discharged for pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 4. 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.) AR20220002142 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1