IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220002818 APPLICANT REQUESTS: reconsideration of his prior request to upgrade his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR20110023274 on 24 July 2012. 2. As a new argument, the applicant states it has been 37 years since he was discharged, and he is requesting an upgrade to enable him to be promoted at the job he has held for 20 years. He was young at the time and didn't know how his characterization of service would affect him for the rest of his life. He has changed his ways. 3. The applicant enlisted in the Regular Army on 4 January 1979 for 3 years. He served in the military occupational specialty (MOS) 11B (Infantryman). He reenlisted on 6 July 1981 and served two tours in Panama. 4. While serving his second tour in Panama, the applicant was diagnosed with hypertrophic cardiomyopathy, asymmetric septal hypertrophy without obstruction. 5. On 12 August 1983, he was assigned to the Medical Holding Company, U.S. Army Medical Department Activity, Panama, pending a medical board. The Medical Evaluation Board (MEB) found him medically unfit. The MEB referred the applicant to the Physical Evaluation Board (PEB) for final disposition. 6. A DA Form 199 (Physical Evaluation Board Proceedings), dated 26 September 1983, shows a PEB was convened at Fort Gordon, GA to consider his case. The PEB determined that his medical and physical impairment had existed prior to service (EPTS) but had been aggravated by the service, and it prevented reasonable performance of his duties. The PEB concluded he was physically unfit for further service and recommended a combined disability rating of 30 percent (%) evaluation with a 10% reduction due to the EPTS factor. It was recommended he be separated from service with disability severance pay. 7. On 24 October 1983, he provided a written statement of his nonconcurrence of the board's recommendation. 8. On 2 November 1983, after reviewing his written appeal and evidence, the PEB adhered to the original findings. On 7 November 1983, the applicant concurred with the PEB's findings and recommendation. 9. His record shows a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 26 December 1979, for wrongfully possessing marijuana, his punishment included reduction to private/E-2 * 18 April 1980, for wrongfully possessing 5.0 grams or less of marijuana, his punishment included reduction to private/E-1 * 8 March 1983, for wrongfully and unlawfully making and uttering to the Army and Air Force Exchange Service bad checks in the amount of $456.00, his punishment included reduction to private first class/E-3 * 25 January 1984, for disobeying a lawful order from a superior noncommissioned officer (NCO), his punishment included reduction to private/E-1 10. A copy of his discharge packet is not available for review. The evidence of record shows that while assigned to a Medical Holding Company for medical processing he received NJP for willfully disobeying a lawful order. He subsequently broke restriction, and the suspended portion of his punishment was vacated. 11. The applicant was discharged on 18 April 1984. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct - commission of a serious offense with issuance of an under other than honorable conditions discharge. His separation code was JKQ. He had 5 years, 3 months, and 10 days of net active service with 6 days of time lost. 12. The DD Form 214 as issued does not include the current regulatory remarks related to his having completed his first full term of service, his reenlistment or that he had a period of continuous honorable active service. These items are supported by sufficient evidence; as a result will be addressed in the "ADMINISTRATIVE NOTE(S)" section and will not be considered by the Board or further addressed in this record of proceedings. 13. The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge on 20 October 1986. The separations processing actions and documentation is not currently available, however, the ADRB case review shows: a. On 28 February 1984, his unit commander advised him of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct- commission of a serious offense due to continued patterns of misconduct and associated rights. It appears this action coincided with the vacation of his punishment (13 February 1984) for the Article 15 imposed on 25 January 1984. b. On 28 February 1984, he acknowledged notification, consulted with legal counsel, waived a hearing by a board of officers, and did not submit a statement in his own behalf. On the same day his unit commander recommended discharge. c. On 15 March 1984, the intermediate commander recommended approval with an under other than honorable conditions discharge. d. On 9 April 1984, the separation authority directed separation with an under other than honorable conditions discharge. 14. While the ADRB denied the applicant's request for an upgrade, it did direct that a DD Form 215 (Correction to the DD Form 214) be issued changing the separation authority from paragraph 14-12c to 14-2b, his separation code from JKQ to JKM and his narrative reason for separation from misconduct – commission of a serious offense to a pattern of misconduct. 15. The ABCMR denied the applicant's request for an upgrade on 24 July 2012, noting that in accordance with Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), a member will not continue physical disability processing when action has been started which authorizes a characterization of service of under other than honorable conditions, as with a Chapter 14 discharge. 16. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance. One possible outcome was to deny relief. However, the majority of Board members noted that a Physical Evaluation Board had determined the applicant had both a medical and physical impairment which existed prior to service, been aggravated by service and prevented reasonable performance of his duties. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. 2. Prior to closing the case, the Board noted the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110023274, dated 24 July 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD214 for the period ending 18 April 1984 showing the character of service as under honorable conditions. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 18 April 1984, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790104 UNTIL 810705 REFERENCES: 1. 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. e. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states an enlisted member may not be referred for physical disability processing when action has been started that may result in his administrative separation with an under other than honorable conditions discharge. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records, 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.) AR20220002818 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1