IN THE CASE OF: 

		BOARD DATE: 20 September 2023

		DOCKET NUMBER: AR20230001852


APPLICANT REQUESTS:

*	an upgrade of his under other than honorable conditions discharge, for the 
service period ending 6 June 1990
*	correction of his record to show he was discharged due to a medical disability
*	a video/telephonic appearance before the Board 

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

*	DD Form 149 (Application for Correction of Military Record)
*	Medical Records
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), 7 February 
1986
*	NGB Form 22 (National Guard Bureau Report of Separation and Record of 
Service), 1 December 1986
*	Orders Number 36-3, 24 February 1987
*	DD Form 214, 6 June 1990


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, in effect, he is requesting an upgrade of his discharge due to 
injury which occurred while he was serving. He really needs medical help through the 
Department of Veterans Affairs (VA). While serving he slipped and fell approximately 2 
to 3 flights of stairs and injured his back. He is having issues and it is getting worse 
each year. During his service he received the Army Achievement Medal, the Safe 
Drivers Badge, and was a good Soldier. He started having marital problems, mental 
health issues, and thoughts of suicide. 

3.  The applicant provides the following supporting documentation:

	a.  Medical records which show he received emergency care and treatment for back 
pain while serving on active duty. 

	b.  A DD Form 214, which shows the applicant entered active duty on 30 August 
1985 and was released from active-duty training on 7 February 1986, upon completion 
of term of service. 

   c.  NGB Form 22, shows he was honorably discharged from the ARNG on 
1 December 1986. He completed 1 year, 4 months, and 12 days of net service during 
the period covered. 

4.  A review of the applicant’s service records show the following:

	a.  He entered active duty on 30 August 1985. He was released from active duty 
training on 7 February 1986 with an uncharacterized characterization of service. His DD 
Form 214 shows he completed 5 months and 8 days of active service. It also shows in 
Block 14 (Military Education) the applicant completed 7 weeks of training as a Motor 
Transport Operator and was awarded the military occupational specialty of 64C.

	b.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the 
applicant was examined on 26 November 1985 for an injury (contusion and mid back). 
The applicant lost his footing as he was coming down the stairs from the third floor and 
fell down about 8 stairs. The applicant complained of back pain and was transported to 
Walson Army Community Hospital. The attending physician noted that the injury 
incurred in the line of duty and the unit commander/unit advisor noted the applicant was 
on active duty. The document was reviewed for completeness by the Chief, Criminal 
Law Division and approved as in the line of duty. 

   c.  Having had prior service in the Army National Guard (ARNG), a DD Form 4 
(Enlistment/Reenlistment Document) shows the applicant enlisted in the Army under the 
delayed entry/enlistment program (DEP) on 2 December 1986. He was discharged from 
the DEP and enlisted in the Regular Army on 2 January 1987. 
 
	d.  DA Forms 4187 (Personnel Action), show the applicant’s duty status changed on 
the following dates:

*	Present for Duty (PDY) to Absent without Leave (AWOL) – 24 October 1988
*	AWOL to PDY – 14 November 1988
*	PDY to AWOL – 20 March 1989
*	AWOL to PDY – 29 March 1989
*	PDY to AWOL – 5 July 1989
*	AWOL to Dropped from Rolls (DFR) – 5 August 1989
*	DFR to Attached/PDY – 2 April 1990
   
   e.  On 2 April 1990, the applicant waived his right to a separation medical 
examination.
   
   f.  Court-martial charges were preferred against the applicant on 3 April 1990. His 
DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or 
about 5 July 1989 to on or about 2 April 1990.
   
   g.  On 3 April 1990, after consulting with legal counsel, he requested discharge for 
the good of the service under Army Regulation (AR) 635-200 (Personnel Separations – 
Enlisted Personnel), chapter 10. The applicant acknowledged: 
   
*	he made the request of his own free will
*	he understood by requesting discharge, he was admitting guilt to at least one 
of the charges against him, or of a lesser included offense that also 
authorized the imposition of a bad conduct or dishonorable discharge
*	he could be deprived of many or all Army benefits and could be ineligible for 
many or all benefits administered by the Veteran’s Administration 
*	he could be deprived of his rights and benefits as a Veteran under both 
Federal and State law and encounter substantial prejudice in civilian life 
*	he further understood there was no automatic upgrading or automatic review 
by any government agency of a less than honorable discharge 
*	he may apply to the Army Discharge Review Board (ADRB) or the ABCMR if 
he wished review of his discharge

   h.  On 11 April 1990, the immediate commander recommended approval of the 
request for discharge for the good of the service with an under other than honorable 
conditions characterization of service.

   i.  On 20 April 1990, the separation authority approved the applicant’s request to be 
discharged for the good of the service, directed the applicant be reduced to the lowest 
enlisted grade, and issued an under other than honorable conditions discharge.
   
   j.  On 6 June 1990, he was discharged from active duty with an under other than 
honorable conditions characterization of service. His DD Form 214 shows he completed 
2 years, 7 months, and 9 days of active service during the covered period. His DD Form 
214 shows he had lost time from:
   
*	24 October 1988 – 13 November 1988
*	20 March 1989 – 28 March 1989
*	5 July 1989 – 31 January 1990
*	1 February 1990 – 1 April 1990
   
5.  A review of the applicant’s service record confirms due to a change in recent policy, 
the discharge characterization can be upgraded on his DD Form 214 for the service 
period ending 7 February 1986. The entry will be added to his DD Form 214 as an 
administrative correction and will not be considered by the Board. The Board will 
consider the applicant’s listed requests.

6.  On 14 January 1997, the Army Discharge Review Board (ADRB) denied the 
applicant’s request for change in the character and/or reason of his discharge. The 
ADRB determined that the applicant was properly and equitably discharged. 

7.  The applicant's record is void of documentation that shows she was treated for an 
injury or an illness that warranted her entry into the Physical Disability Evaluation 
System (PDES). Additionally, there is no indication she was issued a permanent 
physical profile or underwent a medical evaluation board (MEB) or a physical evaluation 
board (PEB).

8.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the 
ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the 
ABCMR.  

9.  By regulation (AR 635-200), an individual who has committed an offense or offenses, 
the punishment for which, includes a bad conduct or dishonorable discharge, may 
submit a request for discharge for the good of the service. An Under Other than 
Honorable Discharge Certificate normally is appropriate for a member who is 
discharged for the good of the service or in lieu of trial by court-martial.

10.  By regulation (AR 635-40), Chapter 5 provides for separation of an enlisted soldier 
for non-service aggravated existed prior to service (EPTS) conditions when soldier 
requests waiver of Physical Evaluation Board (PEB) evaluation. Separation under the 
authority of this chapter is not to be confused with separation under the provisions of AR 
635-200, chapter 5. The latter provides for involuntary separation within 'the first 6 
months of entry onto active duty for failure to meet procurement fitness standards. If the 
time period exceeds 6 months or if the condition is disqualifying under AR 40-501, 
chapter 3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under 
this chapter.  

11.  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.
12.  In reaching its determination, the Board can consider the applicant’s petition and 
his service record in accordance with the published equity, injustice, or clemency 
determination guidance.

13.  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 6 June 1990 
discharge characterized as under other than honorable conditions.  He states: 
“While serving, I slipped and fell down approximately 2-3 flights of stairs and 
injured my back.  I’m having issues and it’s getting greater each year.  Now while 
serving, I did receive [an] Army Achievement Medial, Safe Driver’s Badge, and 
was a good Soldier.  Started having marital problems, mental health issues, and 
thoughts of suicide.   
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The DD 214 for the period of service under consideration 
shows he entered the Regular Army on 2 January 1987 and was discharged under 
other than honorable conditions on 6 June 1990 under the separation authority provided 
by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 
1989): Discharge for the Good of the Service.  
    d.  Medical documentation submitted with the application shows he was seen in 
Walson Army Community Hospital on Ft. Dix, NJ on 26 November 1985.  He reported to 
have fallen against a wall and hurt his back.  He was found to have a small contusion in 
the area between the thoracic spin and his left shoulder blade.  He as released with an 
unknown period of modified duty.  
    e.  A Charge Sheet (DD form 458) shows the applicant was charged with absence 
without leave (AWOL) from 5 July 1988 thru 2 April 1990.  
    f.  On 3 April 1990, the applicant voluntarily requested discharge in lieu of trial by 
courts-martial under provisions in chapter 10 of AR 635-200.  His request was approved 
by the brigade commander on 20 April 1990 with the directives he receives an under 
other than honorable characterization of service and be reduced in rank to private (E1).
    g.  Review of his records in JLV shows no mental health conditions listed on his 
medical problem list and no encounters of mental health issues.  
    h.  There is no evidence the applicant had a mental health or other medical condition 
which would have contributed to or would now mitigate the UCMJ violation which 
resulted in his discharge.  Furthermore, there is no evidence the applicant had any 
medical condition prior to his discharge which would have failed the medical retention 
standards of chapter 3, AR 40-501, and would therefore have been a cause for referral 
to the Disability Evaluation System.    
    i.  It is the opinion of the Agency medical advisor that an upgrade of his discharge is 
unwarranted.
Kurta Questions:
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?  NO
    (2)  Did the condition exist or experience occur during military service?  N/A
    (3)  Does the condition or experience actually excuse or mitigate the discharge?  N/A


BOARD DISCUSSION:

1.  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 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 no evidence the applicant had a mental 
health or other medical condition which would have contributed to or would now mitigate 
the UCMJ violation which resulted in his discharge. Additionally, the Board noted in the 
opine, there is no evidence the applicant had any medical condition prior to his 
discharge which would have failed the medical retention standards of chapter 3, AR 40-
501, and would therefore have been a cause for referral to the Disability Evaluation 
System.

2.  The Board agreed there is insufficient evidence of in-service mitigation to overcome 
the misconduct. As noted by the Board, the applicant provided insufficient evidence of 
post-service achievements or letters of support that could attest to his honorable 
conduct that might have mitigated the discharge characterization. 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. Therefore, relief was 
denied.

3.  Prior to closing the case, the Board did note the analyst of record administrative 
notes below, and recommended the correction is completed to more accurately depict 
the military service of the applicant.

4.  The Board determined DES compensates an individual only for service incurred 
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.

5.  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:

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.

ADMINISTRATIVE NOTE(S):

A review of the applicant’s records shows due to recent policy changes, he can be 
granted an upgrade not listed on his DD Form 214 for the service period ending 7 
February 1986. As a result, reissue his DD Form 214 to reflect in Block 24 (Character of 
Service) an honorable discharge.


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 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel. 

   a.  An honorable discharge is a separation with honor. The honorable 
characterization is appropriate when the quality of the Soldier'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 used for a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge. 

   c.  Chapter 10 of this regulation states an individual who has committed an offense 
or offenses, the punishment for any of which includes a bad conduct discharge or 
dishonorable discharge, may submit a request for discharge for the good of the service.  
An Under Other than Honorable Discharge Certificate normally is appropriate for a 
member who is discharged for the good of the service.

3.  Army Regulation 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.  Paragraph 3-2 states 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.  Paragraph 3-4 states 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.

	c.  Chapter 5 provides for separation of an enlisted soldier for non-service 
aggravated existed prior to service (EPTS) conditions when soldier requests waiver of 
Physical Evaluation Board (PEB) evaluation. Separation under the authority of this 
chapter is not to be confused with separation under the provisions of AR 635-200, 
chapter 5. The latter provides for involuntary separation within 'the first 6 months of 
entry onto active duty for failure to meet procurement fitness standards. If the time 
period exceeds 6 months or if the condition is disqualifying under AR 40-501, chapter 3, 
a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter.  

4.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness 
standards for enlistment, induction, appointment (including officer procurement 
programs), retention, and separation (including retirement). The Department of 
Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the 
VA as part of the process of adjudicating disability claims. It is a guide for evaluating the 
severity of disabilities resulting from all types of diseases and injuries encountered as a 
result of or incident to military service. This degree of severity is expressed as a 
percentage rating which determines the amount of monthly compensation.

5. 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.

6. 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.

7.  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.

8.  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.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

   a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

   b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230001852


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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