IN THE CASE OF: BOARD DATE: 27 July 2023 DOCKET NUMBER: AR20230000078 APPLICANT REQUESTS: in effect, * upgrade of his under other than honorable conditions discharge to a medical separation/retirement * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 his medical records are missing. He was neglected and misdiagnosed with influenza instead of spinal meningitis. Military personnel released him into an officer’s custody in Elizabeth City, NC for a traffic violation. He was dropped off at Cherry Hill mad house where he almost died, and his wife and family were not notified. He was counted as absent without leave (AWOL). Judge Advocate General would not assist him. He was under mental distress, and he has no accountability of a portion of his life not what happened to him. Captain D.B. of the Air Force at Goldsboro, NC saved his life. He was in a coma for 11 days and none of his family was notified. He is deaf in his right ear. 3. The applicant enlisted in the Regular Army on 1 July 1975. 4. On 27 August 1975, he received non-judicial punishment (NJP) for assault on or about 25 August 1975. 5. On 8 September 1976, he was admitted to Womack Army Hospital, Fort Bragg, NC. He was essentially well until 2 weeks prior to admission, when he developed dysuria and penile drip. This was diagnosed as GC (Gonococcal), and he was treated with IM Penicillin and Probenecid. Approximately five days prior to admission, he developed increased joint stiffness and fever. Three days prior to admission, he developed chills, fever to 103, swelling and pain in the right ankle and dorsum of the left hand. Two days prior to admission, he developed pustules on legs, arms and hands. No previous history of arthritis, no sexual contact since last treatment for GC, no history of bowel disease. At the time of discharge, his arthritis had resolved, skin lesions were healing well, and his white count was 10,000. No new murmurs were heard at the time of discharge. He was diagnosed with GC sepsis. He was discharged on 15 September 1976. 6. On 25 October 1977, he received NJP for on or about 8 August 1977, without authority, failing to go at the time prescribed to his appointed place of duty (morning formation). 7. DA Form 4187 (Personnel Action) shows his duty status changed from ordinary leave to AWOL on 15 December 1977. His duty status was changed again on 27 December 1977, from AWOL to present for duty (PDY). 8. On 3 January 1978, he received NJP for being AWOL on or about 15 December 1977 until on or about 27 December 1977. He was reduced to private first class/E-3. 9. Clinical Record Cover Sheet, 15 January 1978, shows absent sick Cherry Hospital, Goldsboro, NC 14-15 January 1978 (1 day). His diagnosis was meningococcal meningitis. 10. Clinical Record, shows he was admitted to US Air Force Seymour Johnson Air Force Base, Goldsboro, NC on 15 January 1978 – 26 January 1978 (11 days). An addendum to summary dictated on 25 January 1978, the physician failed to mention in the Narrative Summary that the patient complained of increasing ringing in his ears as he became more conscious. Hearing testing showed that his Weber's lateralized to his left ear and that both ear conduction and bone conduction were markedly decreased over the right ear. The right tympanic membrane was within normal limits. This is all compatible with 8th nerve damage due to the bacterial meningitis. On the day prior to discharge the patient began to complain of excruciating pain in the right thigh. This was made worse with the psoas stretch. Prothrombin time taken that evening was 28.9. He was treated on the next morning with Vitamin K, 10mg. intramuscularly, and repeat prothrombin time was 13, and about 12 hours later was 11.8. Serum calcium was 9.2 (low for our laboratory). At this time findings noted above are compatible with hypoprothrombinemia, secondary to poor dietary intake and right femoral neuropathy secondary to a psoas retroperitoneal bleed. The patient was placed at bed rest when these findings were noted. He has improved somewhat, although he still has pain in his leg. Transfer diagnosis shows: * Meningococcal meningitis with septicemia * 8th nerve deafness secondary to #1 * right femoral neuropathy 11. His records contain several DA Forms 3349 (Medical Condition - Physical Profile Record) * 24 February 1978, due to meningitis (3T) thru 9 March 1978 * 21 March 1978, meningitis (3T) thru 21 April 1978 * 29 March 1978, hearing loss in right ear (profound sensory-neural hearing loss in AD, within normal limits AS) * 16 May 1978, meningitis (3T) thru 16 August 1978 12. DA Form 1695 (Oath of Extension of Enlistment), shows he extended his enlistment on 13 July 1978 for six months. 13. DA Form 4187 shows his duty status was changed from PDY to AWOL on 24 July 1978. His duty status was changed again from AWOL to PDY on 28 July 1978. 14. DA Form 3349 shows a T3 profile for second degree fungal infection thru 15 October 1978. 15. DA Form 4187 shows his duty status was changed several times on/for: * PDY to AWOL/18 September 1978 * AWOL to PDY/29 September 1978 * PDY to AWOL to Dropped from rolls (DFR)/4 October 1978 * DFR to return to military control (RMC)/12 October 1978 * PDY to AWOL/18 October 1978 * AWOL to DFR/19 October 1978 * DFR to RMC/4 January 1979 * PDY to confined to military authorities (CMA)/5 January 1979 * CMA to PDY/5 January 1979 16. The circumstances surrounding his discharge are not available for review. However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 1 March 1979 in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the good of the service). His DD Form 214 also shows he completed 3 years, 5 months, and 16 days net active service this period. He had 114 days lost for the periods: * 15 December 1977 – 26 December 1977 * 24 July 1978 – 27 July 1978 * 18 September 1978 – 28 September 1978 * 4 October 1978 – 11 October 1978 * 18 October 1978 – 4 January 1979 * 7 February 1979 – 1 March 1979 (Excess leave) 17. There is no evidence of medical evaluation board or physical evaluation board consideration nor did the applicant provide any evidence. 18. AR 15-185 (ABCMR) states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 19. 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. 20. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 21. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 22. 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 (EMR) (AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and 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 1 March 1979 under other than honorable conditions discharge, and, in essence, a referral to the Disability Evaluation System (DES). He states he had “Mental Distress” and spinal meningitis which was misdiagnosed as influenza. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 show he entered the regular Army on 1 July 1975 and was discharged under other than honorable conditions on 1 March 1979 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 March 1978): Discharge for the Good of the Service – Conduct Triable by Court Martial. d. The applicant received an Article 15 on 27 August 1975 for assaulting a fellow Solider with his fists in violation of Article 128 of the UCMJ. e. A discharge summary shows the applicant was admitted to the hospital from 8-15 September 1976 for the treatment of gonorrheal sepsis. His condition was good at the time of discharge and he was returned to his unit. f. The applicant received a second Article 15 on 25 October 1977 for failure to repair in violation of Article 86 of the UCMJ. He received a third Article 15 on 3 January 1978 for being absent without leave from 15-27 December 1977 in violation of Article 86 of the UCMJ. g. A second discharge summary shows the applicant was hospitalized from 15-26 January 1978 for treatment of meningococcal meningitis with septicemia which resulted in damage to the “right VIII cranial nerve” and deafness. The applicant was placed on a permanent duty limiting physical profile for his hearing loss on 28 March 1978 and was determined “medically qualified for duty with permanent limitations.” The profile stated “No assignment involving exposure to loud noises or firing weapons. (Not to include firing for PQR qualification.)” h. The applicant had several periods of absence without leave. i. Neither the applicant’s separation packet nor additional documentation addressing his voluntary administrative separation was submitted with the application nor uploaded into iPERMS. j. His period of service predates AHLTA and review of his records in JLV found no mental health diagnoses. k. 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. l. 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: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding his health and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by any medical conditions and there being no basis for referring him to the Disability Evaluation System prior to his discharge. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation and the reason for his separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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, U.S. 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. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence 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 were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge under other than honorable conditions (UOTHC) is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 7. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. Title 10, U.S. Code, section 1556 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. 10. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on 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. 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) AR20230000078 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1