IN THE CASE OF: 

		BOARD DATE: 30 August 2023

		DOCKET NUMBER: AR20230000792


APPLICANT REQUESTS:

*	an upgrade of his service characterization from bad conduct to under honorable 
conditions (general) or medical.
*	correction of the line-of-duty (LOD) determination to show the accident occurred 
in the LOD
*	a personal appearance hearing before the board (via video/telephone)

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Self-authored Letter, undated

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:

	a.  He began his tour of duty in Fort Drum, NY, in January 1990. By summertime, he 
had been transferred to Headquarters and Headquarters Company and assigned as a 
high mobility multi-purpose wheeled vehicle (HMMWV) (colloquially known as Humvee) 
support driver. On or about 8 October 1990, he was in a Humvee accident and suffered 
injuries that have continued to cause lasting consequences. He started his day in the 
motor pool cleaning his vehicle using a pressure washer that was available in the motor 
pool. He was about halfway done with his task when his supervisor, Sergeant  ordered 
him to take a load of spare lumber out to the lumberyard on post. As he was not familiar 
with the location, he was ordered to follow another driver. The accident occurred when 
he was returning. He lost control of the vehicle, the Humvee rolled, and he was hit 
across the pelvis with the rollbar. He sustained a supra-pubic pelvic crush injury which 
required insertion of a 4-inch metal plate and four screws. His left hip was dislocated 
from the spinal column, causing lifelong sciatica. One of his legs is now about 1/2 inch 
shorter than the other. His urethra was transected and the resulting scar tissue still 
causes pain. He was first hospitalized at the Medical Center in, , for about 1 week 
following the accident. Then he was transferred to the post hospital for an additional 
2 weeks of intensive care before being granted 60 days of convalescence leave.

	b.  Upon his return to duty in January 1991, he was issued field-grade nonjudicial 
punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), wherein 
he was found guilty of driving too fast for conditions. He was demoted to the rank/grade 
of private/E1, given 30 days of extra duty, lost 1 month of pay, and he was charged for 
repairs to the Humvee. Soon after, the company executive officer (XO) conducted an 
LOD investigation. The XO determined the accident was not in the LOD. He never saw 
the report, nor was he allowed to appeal the decision. He assumes the NJP was used 
as justification, though he was never able to verify this. The XO and legal office both 
refused to accept his appeal. After waiting several months for his medical discharge 
paperwork to process, he met with his company commander about the delay. His 
commander admitted the delay was retaliatory because he had refused an order from a 
platoon sergeant months before to violate his permanent "3" (P3) physical profile rating. 
He explained to his commander that a direct order to violate his P3 physical profile 
rating was illegal and he would be subject to disciplinary action if he were reinjured.

	c.  About 6 months into 1991 he was told that his medical discharge was denied, all 
medical benefits were denied, and he would not be receiving a medical discharge but a 
general discharge due to the LOD determination. When he received this news, 
something inside him caused him to snap. He was overwhelmed by the injustice of the 
decision. That evening he broke into the brigade headquarters and took the computers 
out of the personnel office and placed them in the wood line. For this offense, he was 
given a general court-martial. He was sentenced to 1 year of confinement and given a 
bad conduct discharge. He served his time and was released after 9 months due to 
good behavior. He has had no other arrests and has not been in any non-traffic related 
legal issues since. After his discharge, he struggled to manage his medical conditions. 
In 1998, he dropped out of college due to a major depressive episode in his final 
semester. From 1998 to 2016 he struggled to maintain gainful employment. In 2016 he 
was hospitalized for suicidal ideation. The only reason he survived that year was 
because of his roommate, who was a veteran herself, a registered nurse, and she had 
professional experience counseling people in crisis. Thanks to her education and 
medical observations, he was finally able to accept his various medical conditions and 
began to seek treatment. That is when his record with the Department of Veterans 
Affairs began.

	d.  The Humvee accident which occurred while he was serving on duty in uniform 
under orders and on mission has negatively impacted significant portions of his life. He 
has struggled to maintain employment and most years he did not make enough to cross 
the poverty line. He has years in therapy dealing with the various traumas caused by his 
accident as evidenced by available medical records. Despite his best efforts and 
working with various Department of Veterans Affairs programs, he has been unable to 
find full-time employment since 2014. Whatever sins he committed, he has more than 
paid for. He lives with chronic pain and arthritis and nerve damage every single day. He 
admits his mistakes and asks for mercy. He requests service connection for the injury 
he sustained while serving his country and compensation for the service connection.

3.  He enlisted in the Regular Army on 5 September 1989.

4.  His DA Form 3349 (Physical Profile), 11 April 1991, shows he underwent an open 
reduction and internal fixation surgery for a pelvis crush fracture with residual nerve 
damage.

	a.  He was assigned a P3 physical profile rating under the lower extremities factor.

	b.  He was limited to no running, marching, jumping, or standing for over 15 minutes 
per hour; and no mandatory strenuous physical activity.

	c.  The examining physician noted he was unfit for military duty and recommended 
his referral to a medical evaluation board.

5.  Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, NY, 
General Court-Martial Order Number 10, 25 November 1991, shows he was convicted 
of the following charges and specifications:

	a.  Charge I: violation of Article 121 (Larceny and Wrongful Appropriation), UCMJ, 
for stealing property of the U.S. Government of a value of about $3,724.00 on or about 
9 July 1991 and

	b.  Charge II: violation of Article 130 (Stalking), UCMJ, for unlawfully entering the 
office of Headquarters, 1st Brigade, with the intent to commit larceny on or about 9 July 
1991.

	c.  The sentence, adjudged on 20 September 1991, consisted of forfeiture of all pay 
and allowances, confinement for a period of 18 months, and to be discharged from the 
service with a bad conduct discharge.

6.  On 5 March 1992, the U.S. Army Court of Military Review considered the applicant's 
appeal. The court held the findings of guilty and the sentence as approved by the 
convening authority to be correct in law and fact. The findings of guilty and the sentence 
were affirmed.

7.  The DA Form 4187 (Personnel Action), 2 July 1992, shows his duty status was 
changed from confined by military authorities to present for duty.

8.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General 
Court-Martial Order Number 156, 13 November 1992, shows the sentence to a bad 
conduct discharge, confinement for 12 months, and forfeiture of all pay and allowances 
adjudged on 20 September 1991 had been finally affirmed. That portion of the sentence 
extending to confinement had been served and the bad conduct discharge would be 
executed.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
was discharged in the rank/grade of private/E-1 on 14 December 1992 under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
chapter 3. He completed 2 years, 5 months, and 28 days of net active service during 
this period with lost time from 20 September 1991 to 1 July 1992. His service was 
characterized as bad conduct. His DD Form 214 does not reflect any individual awards 
or decorations.

10.  His records are void of an LOD determination.

11.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority 
under which this Board acts, the ABCMR is not empowered to set aside a conviction. 
Rather, it is only empowered to change the severity of the sentence imposed in the 
court-martial process and then only if clemency is determined to be appropriate. 
Clemency is an act of mercy or instance of leniency to moderate the severity of the 
punishment imposed.

12.  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 (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:  
    b.  The applicant is applying to the ABCMR requesting an upgrade of his 14 
December 1992 bad conduct discharge and, in essence, a referral to the Disability 
Evaluation System (DES).  He states through counsel:
“I am asking for an upgrade to my discharge to general or medical as opposed to 
bad conduct.  I am requesting the LOD [Line of Duty] investigation be reversed 
as to indicate that the accident occurred in the line of duty.  
LOD Investigation: I was in uniform, on mission, and under orders at the time of 
the incident.  Additionally, I was denied legal counsel as was my right at the 
article 15 hearing that was used to justify this outcome. 
Bad Conduct Discharge: This finding has been a continuing source frustration.  I 
am denied college benefits, such as the GI Bill which I had already paid into.  I 
was denied VRAP [Veterans Retraining Assistance Program] due to character of 
discharge despite there being no character of discharge requirement. 
Being denied medical and mental health resources for almost 25 years since my 
discharge has led to major mental health issues, including major depression and 
suicidality.  Having this discharge following me around has limited my ability to 
improve myself and my situation.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 shows he entered the regular Army on 5 
September 1989 and received a bad conduct discharge on 14 December 1992 under 
the provisions provided in Section IV of chapter 3 of AR 635-200, Personnel 
Management – Enlisted Personnel (17 September 1990): Dishonorable and Bad 
Conduct Discharge.  His separation code of JJD denotes this separation was the result 
of court martial.  The DD 214 shows no periods of Service in a hazardous duty pay 
area.  
    d.  A General Court Martial Order dated 25 November 1991 shows the applicant was 
found guilty of and pled guilty to:

“Specification: Steal property of the U.S. Government of a value of about 
$3,724.00, on or about 9 July 1991. 

Specification: Unlawfully enter office of Headquarters, 1st Brigade with the intent 
to commit larceny, on or about 9 July 1991.” 

    e.  The applicant was sentenced to 12 months of confinement and forfeiture of all pay 
and allowances.  He was released from confinement on 2 July 1992 and subsequently 
discharged with a bad conduct characterization of Service.

    f.  Part II of his Personnel Qualification Record (DA form 2-1) shows the applicant had 
likely permanent duty limitations due to a pelvic injury, the date of injury as well as the 
origins of which are unknown.  It states:

“Crush fracture of pelvis with residual nerve damage – No running, Marching, 
Jumping, Standing over 15 Min/Hour, or Mandatory Strenuous physical activity.”

    g.  Even if the injury was duty related, his upcoming bad conduct discharge made him 
ineligible for referral to the Physical Disability Evaluation System.  Paragraph 4-3a and 
4-3b of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 
September 1990) states: 
*	“Except as provided below, an enlisted soldier may not be referred for, or 
continue, physical disability processing when action has been started under any 
regulatory provision which authorizes a characterization, of service of under, 
other than honorable, conditions.
*	If the case comes within the limitations above, the commander exercising, 
general court-martial jurisdiction over the soldier may abate the administrative 
separation. This authority may not be delegated.  A copy of the decision, signed 
by the. general' court-martial convening authority (GCMCA), must be forwarded 
with the disability case file to the PEB.  A case file may be referred in this way if 
the GCMCA finds the following: 
*	The disability is the cause, or a substantial contributing
*	cause, of the misconduct that might result in a discharge under other than 
honorable conditions.
*	Other circumstances warrant disability processing instead of
*	alternate administrative separation.”

    h.  Review of his records in JLV shows he has been diagnosed with generalized 
anxiety disorder and dysthymic disorder.  Because of his characterization of discharge, 
it is unknown if either of these conditions is service connected.  

 Kurta Questions:
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?  Possibly generalized anxiety disorder and dysthymic disorder
    (2)  Did the condition exist or experience occur during military service?  Possibly 
    (3)  Does the condition or experience actually excuse or mitigate the discharge?  No: 
Neither condition impairs one’s ability to differentiate right from wrong and adhere to the 
right, thus they cannot mitigate the criminal behaviors for which he was convicted and 
resulted in his bad conduct discharge.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the applicant's military records, the Board found that relief was not warranted. . 
The Board carefully considered the applicant's record of service, documents submitted 
in support of the petition and executed a comprehensive and standard review based on 
law, policy and regulation, and published Department of Defense guidance for liberal 
and clemency determinations requests for upgrade of his characterization of service.  
Upon review of the applicant’s petition, available military records and medical review, 
the Board concurred with the advising official finding neither condition impairs one’s 
ability to differentiate right from wrong and adhere to the right, thus they cannot mitigate 
the criminal behaviors for which he was convicted and resulted in his bad conduct 
discharge. 

2.  The Board found insufficient evidence of in-service mitigating factors for the 
misconduct. The applicant provided no post-service achievements and letters of support 
to weigh a clemency determination. Furthermore, based on the preponderance of 
evidence, the Board determined there was insufficient evidence that would warrant 
correction of the line-of-duty (LOD) determination to show the accident occurred in the 
LOD. Therefore, the Board denied relief. 

3.  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, 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 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. The ABCMR will decide cases on the evidence of 
record; it is not an investigative body. 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 evidence. The ABCMR may, in its 
discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an 
administrative hearing) or request additional evidence or opinions. 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.

3.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) 
prescribes policies and procedures for investigating the circumstances of disease, 
injury, or death of a Soldier. It provides standards and considerations used in 
determining LOD status. LOD determinations are essential for protecting the interest of 
both the individual concerned and the U.S. Government where service is interrupted by 
injury, disease, or death. Soldiers who are on active duty for a period of more than 
30 days will not lose their entitlement to medical and dental care, even if the injury or 
disease is found to have been incurred not in the LOD and/or because of the Soldier's 
intentional misconduct or willful negligence. A person who becomes a casualty because 
of his or her intentional misconduct or willful negligence can never be said to be injured, 
diseased, or deceased in the LOD. Such a person stands to lose substantial benefits as 
a consequence of his or her actions; therefore, it is critical that the decision to 
categorize injury, disease, or death as not in the LOD only be made after following the 
deliberate, ordered procedures described in this regulation. The definition of "LOD" in 
Army Regulation 600-8-4 is confined to the purpose of this regulation and is completely 
distinct from usage under Title 28, U.S. Code, section 2671 (Definitions). It has no 
bearing on the meaning or application of the phrase "acting within the scope of his office 
or employment" as used in the context of Title 28, U.S. Code, section 2671.

4.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set policies, standards, and procedures to ensure the readiness and 
competency of the force while providing for the orderly administrative separation of 
Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards 
of conduct and performance.?
	a.  Chapter 3 stated a Soldier will be given a bad conduct discharge pursuant only to 
an approved sentence of a general or a special court-martial. The appellate review must 
be completed and the affirmed sentence ordered duly executed.

	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.

5.  Title 10, U.S. Code, section 1552(f), provides that the Secretary of a Military 
Department may correct any military record of the Secretary's Department when the 
Secretary considers it necessary to correct an error or remove an injustice. With respect 
to records of courts-martial and related administrative records pertaining to court-martial 
cases tried or reviewed under the UCMJ, action to correct any military record of the 
Secretary's Department may extend only to correction of a record to reflect actions 
taken by reviewing authorities under the UCMJ or action on the sentence of a court-
martial for purposes of clemency. Such corrections shall be made by the Secretary 
acting through boards of civilians of the executive part of that Military Department.

6.  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 regarding equity, injustice, or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence. Boards 
for Correction of Military/Naval Records 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. This guidance 
does not mandate relief but provides standards and principles to guide Boards in 
application of their equitable relief authority.

	a.  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.

7.  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 
ABCMR applicants (and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230000792


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1