IN THE CASE OF:  	  

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140003470 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:  

   a.  the separation authority of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c be voided from his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 1999 based on dismissal of his court case by a civilian judge;
   
   b.  his general under honorable conditions discharge be changed to a medical discharge; and 
   
   c.  promotion from staff sergeant (SSG)/E-6 to sergeant first class (SFC)/E-7.

2.  He states:

	a.  his civilian case was dismissed;

	b.  his discharge was an injustice;

   c.  he was discharged for misconduct with a general under honorable conditions discharge;
   
   d.  he has learned that there is no DD Form 214 to correct;
   
   e.  he was a victim of the Whistleblower Act; and 
   f.  he questions whether he will be identified as a person of "misconduct" for life.

3.  He provides:

* DD Form 214 for the period ending 1 March 1999
* Motion to Terminate Community Supervision
* Letter, dated 11 September 1995, from an attorney
* Letter, dated 16 November 2012, addressed to Northeast Independent School District, San Antonio, TX
* Two letters, dated 28 December 2012 and 15 February 2013, from the Department of Veterans Affairs (VA)
* Award certificate, dated 4 June 1991 for the Bronze Star Medal
* Orders 57-29, dated 27 July 1992 promoting him to SSG/E-6
* Letter, dated 3 July 2009
* Letter, dated 29 October 2013, from the Chief, Case Management Division, Army Review Boards Agency

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 24 September 1981 and he was honorably released from active duty on 23 September 1985 in the rank of specialist four/E-4.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  He enlisted in the Texas Army National Guard (TXARNG) on 4 October 1985 and was discharged from the TXARNG and as a Reserve of the Army on 9 August 1989 in the rank of specialist/E-4.


4.  On 10 August 1989, he enlisted in the U.S. Army Reserve for a period of six years.  He was ordered to active duty for training (ADT) on 13 April 1990 and was released from ADT on 30 May 1990.  Upon completion of ADT, he was awarded military occupational specialty (MOS) 96R (Surveillance Systems Operator).

5.  Orders 105-38, dated 14 December 1990, published by Headquarters, 90th U.S. Army Reserve Command, San Antonio, TX show he was promoted to sergeant/E-5 with an effective date and date of rank of 14 December 1990 in primary MOS 96R2O.

6.  He provided a certificate, dated 4 June 1991, which shows he was awarded the Bronze Star Medal with combat "V" Device for valor on 22 February 1991 in Al Jahra, Kuwait.

7.  He provided Headquarters, 90th U.S. Army Reserve Command, San Antonio, TX Orders 57-29, dated 27 July 1992, which show he was promoted to SSG/E-6 with an effective date and date of rank of 27 July 1992 in primary MOS 96R3O.

8.  His DA Form 2-1 (Personnel Qualification Record) shows he was reduced to sergeant/E-5 with an effective date of 23 August 1992.  His service record is void of evidence which shows he was reduced as a result of nonjudicial punishment.

9.  On 23 August 1992, he was ordered to active duty in an Active Guard Reserve (AGR) status.  He was released from active duty and discharged for the purpose of immediate reenlistment effective 16 July 1995, the same date for reenlistment.

10.  His service record contains a 299th Judicial District Court of Travis County, TX, Judgment of Community Supervision, dated 11 August 1995, which shows he pled guilty to the charge of indecency with a child by fondling second degree felony.  The court found the applicant guilty of the offense committed on 19 June 1994.  He was sentenced to confinement in the Texas Department of Criminal Justice Institutional Division for a period of eight years and assessed a fine of $500.00.  However, the applicant having made application for community supervision, the Court recommended the applicant's sentence be suspended and the applicant be placed on community supervision under the supervision of the Court for eight years.

11.  He provided a letter, dated 11 September 1995, from his civilian attorney who provided facts and circumstances regarding the reason for his representation.  The attorney identified himself as a friend of the applicant, their families attend the same church, and their children attend the same nursery class.  The attorney alleged that the applicant was the actual victim in this case because he refused to have an extra marital affair with the mother of the alleged victim.  The applicant agreed to probation instead of a trial.  The attorney was confident that the applicant would comply with all the terms and conditions of his probation.

12.  Orders 345-4, dated 10 December 1996 published by U.S. Army Personnel Command (currently U.S. Army Human Resources Command), St. Louis, MO show he was promoted to SSG/E-6 with an effective date and date of rank of 1 January 1997 in primary MOS 63B (Light Wheeled Vehicle Mechanic).

13.  On various dates in 1997, he received adverse counseling statements for:

* improper conduct towards a member of his unit
* misconduct with a female Soldier
* accusations of harassment of a female Soldier
* failure to position trailers to the appropriate positions
* failure to secure the Motor Pool office after close of business hours
* negligence in the performance of his duties
* failure to be at the place of duty and making false statements

14.  The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the period ending July 1997 evaluated him as a Senior Mechanic.  This report shows he passed his Army Physical Fitness Test (APFT).  His rater evaluated him as "Fully Capable" and his senior rater assessed his overall performance as "Successful"/block 3 and his overall potential for promotion as "Fair."

15.  On 26 January 1998, he underwent a separation physical examination.  His Standard Form 88 (Report of Medical Examination) shows he was given a physical profile of 111111 and was found qualified for separation.

16.  On 21 January 1998, he underwent a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate for command.

17.  In a 6 May 1998 memorandum addressed to the commander of the 164th Combat Support Company (Direct Support Maintenance), he requested the separation action be disapproved and he requested retention.

18.  On 7 May 1998, the company commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for serious misconduct – commission of a serious offense in that in or about 11 August 1995, he admitted to sexually fondling a child in Travis County, TX.  The company commander recommended that the applicant receive an under other than honorable (UOTHC) conditions discharge.  The applicant was advised of his rights.

19.  In a 14 May 1998 memorandum, the company commander stated he did not consider retention of the applicant would be in the best interest of the U.S. Army Reserve.  The company commander also stated the applicant's offense and subsequent conviction was not revealed by the applicant which prevented military authority from examining his situation and determining his suitability for retention.

20.  On 20 May 1998, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for misconduct under Army Regulation 635-200, paragraph 14-12c and its effects.  He waived consideration of his case by an administrative separation board if his service was characterized no less favorably than honorable and submitted statements in his own behalf.  He indicated he submitted statements in a thick blue folder with brown subdividers and photo; however, his statements are not present in his records.  He requested to meet with the separation authority under his open door policy.

21.  On 7 July 1998, the company commander recommended approval with an UOTHC discharge.

22.  On 8 July 1998, the intermediate commander recommended the applicant be separated from the U.S. Army Reserve and the AGR program and that his service be characterized as UOTHC.

23.  On 11 July 1998, the separation authority disapproved the applicant's request for a conditional waiver of board appearance for an honorable discharge.

24.  His NCOER for the period ending July 1998 evaluated him as a Mechanic.  This report shows he was given a profile in December 1997.  The report states that the profile did not hinder the applicant from performing his assigned duties.  His rater evaluated him as "Fully Capable" and his senior rater assessed his overall performance as "Successful"/block 2 and his overall potential for promotion as "Superior"/block 3.

25.  On 22 September 1998, he underwent another physical examination for separation and he was found qualified for separation.  He was given a physical profile of 111111.  

26.  On 22 September 1998, he completed a Standard Form 93 (Report of Medical History).  He indicated he was not in good health and that on 1 July 1998 he was involved in an automobile accident in which he was injured.  He indicated he sustained multiple cervical subluxation [a slight misalignment of the vertebrae; a partial dislocation] and occasional cervicogenic [originating from the cervical spine or other anatomical structures in the neck] cephalgia [originating from the cervical spine or other anatomical structures in the neck].  He also indicated he had thoracic sprain and thoracic subluxation.  His service record is void of evidence that he was found unfit for duty for these medical conditions.

27.  A board of officers convened on 3 November 1998 and recommended that the applicant be separated from the U.S. Army and his service be characterized as general under honorable conditions.  The board of officers recommended that the separation authority not suspend the discharge for a period not to exceed six months.  

28.  On 10 December 1998, the separation authority approved the findings and recommendations of the board of officers and directed that the applicant be separated from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, section III, paragraph 14-12c for commission of a serious offense.  The separation also directed that the applicant be issued a General Discharge Certificate.

29.  He was discharged from active duty on 1 March 1999 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct.  He completed 
6 years, 6 months, and 9 days active military service during this period.

30.  The DD Form 214 issued for the period ending 1 March 1999 shows in:

	a.  item 24 (Character of Service), the entry "UNDER HONORABLE CONDITIONS (GENERAL)";

	b.  item 25 (Separation Authority), the entry "AR 635-200, PARA 14-12C";

	c.  item 26 (Separation Code), the entry "JKQ"; and 

	d.  item 28 (Narrative Reason for Separation) the entry "MISCONDUCT."

31.  His service record is void of evidence which indicates he was recommended for or promoted to SFC/E-7 prior to his discharge on 1 March 1999.


32.  His service record is void of evidence which indicates he incurred any medical conditions that required processing through physical disability evaluation system or that he was promoted to SFC/E-7 or that he was involved in any Whistleblower action.

33.  He provided a court order from the District Court, 299th Judicial District, Travis County, Texas, which shows that on 25 June 2003, his Motion to Terminate Community Supervision was granted.  The court ordered that the applicant's verdict be set aside and dismissed the accusation, complaint and indictment against the applicant.  It was further ordered that the applicant be released from all penalties and disabilities resulting from the offense or crime he had been convicted or to which he had pled guilty, in accordance with Texas Code of Criminal Procedure, Article 42.12, Section 20(a) applicable to a conviction taking place on 11 August 1995.

34.  He provided a letter, dated 3 July 2009 from the father, C___ G_____ of the victim in the civilian court case.  He attested that he was in the room with his daughter and the applicant for the entire time and he did not see any inappropriate contact between the applicant and his daughter.  

35.  In a 16 November 2012 letter addressed to the Northeast Independent School District, an attorney stated the applicant had been barred from going to this school or picking up his children from this location based on his understanding that some law or statue forbids this action.  The attorney informed the school official that the applicant successfully completed a deferred adjudication in Austin, TX and the applicant's rights were restored and the case was dismissed.  The applicant was never required to register as a sex offender.  In Bexar County, the state charged the applicant for failing to register and this case was dismissed on 12 October 2011.  The case was dismissed upon a proper showing of the appropriate Texas law as well as a judgment from the District Court in Austin, TX, which clearly did not include a requirement to register as a sex offender.

36.  He provided a VA letter, dated 28 December 2012, which verifies the applicant was rated at 100 percent (%) for service-connected disability.

37.  He provided a second VA letter, dated 15 February 2013, which lists a summary of the benefits he currently receives from the VA.

38.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

39.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

   b.  Paragraph 3-7a states 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.

40.  Army Regulation 635-5 (Separation Documents) in effect at the time governed the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation specifies that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes).

41.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from 
active military service, and the SPD codes to be used for these stated reasons.  This regulation shows that SPD "JKQ" as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "misconduct – commission of a serious offense" and the authority for discharge under this SPD code is "Army Regulation 635-200, paragraph 14-12c."

42.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

43.  Army Regulation 635-40, paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition occurring immediately prior to or coincident with separation rendered the member unfit.

44.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his civilian case was dismissed is acknowledged.  The court order provided by the applicant does show the court ordered on 25 June 2003 that the applicant's verdict be set aside and further ordered dismissal of the accusation, complaint and indictment against the applicant.  It was further ordered that the applicant be released from all penalties and disabilities resulting from the offense or crime he had been convicted or to which he had pleaded guilty.  After successfully completing the period of supervision the court dismissed the charge, consistent with the state’s deferred adjudication statute.  The fact that the applicant was arrested and underwent deferred adjudicating remains a matter of public record.

2.  The evidence of record shows the applicant was convicted by a civilian court of the charge of indecency with a child by fondling, a second degree felony.  He was sentenced to confinement in the Texas Department of Criminal Justice Institutional Division for a period of eight years and assessed a fine of $500.00.  However, as part of his plea agreement with the court, he was placed on community supervision for eight years.

3.  The applicant's contention that his discharge was an injustice is acknowledged.  However, he was separated for admitted misconduct not for a civilian conviction and the underlying facts remain.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Although a UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it appears the separation authority determined the applicant's overall service met the standards of acceptable conduct and performance of duty to warrant a general discharge.

5.  The applicant's service record is void of evidence and he has not provided any independent evidence which shows he was a victim under the Whistleblower Act.  His assertion that he wrote his Congressman and the command kicked him out is insufficient.

6.  The applicant served on active duty in the Regular Army from 24 September 1981 through 23 September 1985 and in the AGR program from 23 August 1992 through 1 March 1999.  His service record is void of any medical documentation or other evidence that indicates any medical condition was incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.

7.  The applicant's continued performance of assigned duties supports a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury related to his service that prevented him from performing his duties.  His service record is void of evidence which indicates he was unable to perform his military duties.  Therefore, there was no reason to recommend him for physical disability evaluation processing.

8.  Absent evidence that he incurred any medical conditions while he was entitled to basic pay or were the proximate cause of performing active duty or inactive duty, he would not have been eligible for consideration by an Medical Evaluation Board/Physical Evaluation Board and thus not eligible for a medical discharge.

9.  The applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.  Therefore, there is no basis for granting the applicant’s request for a medical discharge.

10.  The evidence of record shows the applicant was promoted to SSG/E-6 on 27 July 1992; however, his DA Form 2-1 shows he was reduced to sergeant/E-5 on 23 August 1992.  He was promoted to SSG/E-6 again on 1 January 1997. 
11.  The applicant's service record is void of evidence and he has not provided any evidence which shows he was promoted to SFC/E-7 prior to his discharge on 1 March 1999.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X____________
                  CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20140003470





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003470



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1