IN THE CASE OF: BOARD DATE: 4 October 2022 DOCKET NUMBER: AR20220002981 APPLICANT’S REQUEST: reconsideration of his previous request for: * Upgrade of his under other than honorable conditions (UOTHC) discharge to General under honorable conditions. * Confirmation that he has a service-connected disability, tinnitus. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 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 AR2001052257 on 1 August 2001. 2. The applicant states that his upgrade request is justified due to alcoholism that evolved while he was in the service. He argues that he was never offered counseling. He desperately wanted to make the Army a career; however, he allowed other Soldiers to influence him to drink. 3. On 18 February 1986, the applicant enlisted in the Regular Army for a period of two years. Upon completion of training, he was awarded military occupational specialty (MOS) 52D (Power Generation Equipment Repairer). 4. On 17 July 1986, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order on 27 June 1986 and 28 June 1986 by wrongfully entering the “Off Limits” areas of the female barracks. 5. Before a special court-martial on or about 3 September 1987, at Fort Richardson, AK, the applicant was found guilty of disobeying a lawful order from a noncommissioned officer; larceny of a video cassette recorder, valued in excess of $100.00; and unlawful entry into a barracks room. The court sentenced him to confinement for six months, forfeiture of $400 pay per month for 6 months and reduction to the grade of Private/E-1. 6. On 20 October 1987, only that portion of the sentence that provided for confinement for three months, forfeiture of $400.00 pay per month for 6 months and reduction to the grade of Private/E-1 was approved and executed. 7. Memorandum, dated 29 October 1987, shows the Assistant Judge Advocate, Headquarters, 6th Infantry Division (Light), and U.S. Army Garrison, Fort Richardson, AK, reviewed the applicant’s special court-martial case and concluded: * The court-martial had jurisdiction over the accused and each offense as to which there is a finding of guilty which has not been disapproved * Each specification as to which there is a finding of guilty which has not been disapproved states an offense * The sentence is legal 8. Standard Form 88 (Report of Medical Examination), dated 13 January 1988 shows the purpose of the applicant’s medical examination was for “chapter.” 9. The applicant’s separation packet is not available for review. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 22 February 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service - in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 9 months, and 19 days of net active service this period. He was awarded or authorized the Rifle M-16 Expert Qualification and Parachutist Badges. 10. On 11 November 2000, the applicant petitioned the ABCMR for an upgrade of his discharge. After careful consideration, the Board determined the applicant failed to submit evidence that his discharge was in error or unjust. 11. 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 applicant’s record is void of a discharge packet under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. b. The applicant did not provide, and his record is void of medical documentation with a diagnosis of alcoholism or tinnitus during his period of active duty service. Additionally, the term service-connected is a term used by the Department of Veterans Affairs. It means that a veteran's medical condition was directly caused by military service, occurred while in the military (but not necessarily on duty, for example a car accident at night), was aggravated by military service, or was caused by conditions that are themselves service-connected. 12. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 13. MEDICAL REEVIEW: 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 14 October 1988 discharge characterized as under other than honorable conditions, and in essence, a referral to the Disability Evaluation System. He states: “Seeking upgrade in discharge due to the alcoholism/substance abuse contracted while in the service is in omission Furthermore, to have service-connected disability (tinnitus/confirmed) application for disability processed.” 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 18 February 1986 and was discharged under other than honorable conditions on 22 February 1988 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (15 April 1985): Discharge for the Good of the Service. c. A special court martial order dated 20 October 1987 shows the applicant both pled guilty to and was found guilty of willfully disobeying a lawful order for a noncommissioned officer, larceny of a video cassette recorder of a value in excess of $100, and unlawful entry into a barracks room with all infractions occurring on 1 May 1987. d. A pre-separation Report of Medical History completed 13 January 1988 shows the applicant to have been without defects or diagnoses and he was found qualified for release from active duty. e. No further documents addressing his administrative separation were submitted with the application. f. Review of his records in JLV shows he has no diagnosed mental health conditions. It also shows the applicant has a 10% VA service-connected disability rating for tinnitus. 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. 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. h. Kurta Questions: * Did the applicant have a condition or experience that may excuse or mitigate the discharge? No * Did the condition exist or experience occur during military service? NA * Does the condition or experience actually excuse or mitigate the discharge? NA BOARD DISCUSSION: The Board carefully considered the applicants 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. Although his separation packet is not available, his DD Form 214 shows he was charged with commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he would have consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 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: 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 AR2001052257 on 1 August 2001. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided 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, a UOTHC discharge was normally considered appropriate. 3. 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. 4. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002981 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1