IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150004214 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150004214 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC83-10470 on 1 February 1984. __________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. IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150004214 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC83-10470 on 1 February 1984. In effect, he requests an upgrade of his bad conduct discharge. 2. The applicant states, in effect, at the time of enlistment he was suffering from mental health issues; however, he was erroneously allowed to enlist. He was granted an enlistment waiver because he could not pass the entrance exam due to dyslexia. 3. He was trying to better himself but the issues got worse. He developed brain issues while in the service that only compounded the situation. He was not receiving pay so he could not support his kids and the stress pushed him out of character. 4. In a separate letter from the Resources for Human Development (RHD), Wilmington, DE, dated 6 July 2016, the applicant requests medical and financial benefits back to the date of his injuries. He also states: a. He was recruited into the military to become a productive member of society. He was told he would receive training to help him with job development, assistance with education, and he would learn how to become a man. He placed his trust in his recruiter and the United States Army. b. He does not believe he was provided the opportunities or fair treatment that he was promised. Before he went into the Army, he had trouble reading and writing. He honestly felt the Army would be a place for him to seek safety, shelter, and peace. c. During his time in the Army, his life began to spiral out of control. He sustained a series of body and head injuries and despite reporting the injuries to the appropriate staff, he did not receive the help and support he needed to properly heal. He was given alcohol and cocaine to reduce his pain because he was not able to receive pain medication. When he visited sick call, he was told that his records were not readily available and he could not receive any help. d. Due to his lack of comprehension, he was given the lower level jobs; he felt degraded by everyone. He was in top physical condition; however, his mental health began to decline. Around this time, he started to experience nightmares, night sweats, pain throughout his body, suicidal/homicidal thoughts, and anger outbursts. e. His struggle to receive Department of Veterans Affairs (VA) benefits continues to make him feel like he was discarded by the military. He strongly feels that his discharge was a direct result of his mental health condition at the time. He has documented paperwork showing that once he was released from the military and he was properly tested, his severe mental health issues were discovered. f. At times, he feels like he is in prison and caged due to his discharge. It hinders him from being successful and impacts the way his family and society view him. g. He hopes this helps to explain how his experiences in the military impacted him deeply. His reading and writing is still limited; his case manager helped him write his application. 5. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 August 1982; three letters from the Resources for Human Development, Wilmington, DE, dated 31 March 2015, 5 July 2016, and 6 July 2016; and approximately 70 pages of military and civilian medical records. 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC83-10470 on 1 February 1984. 3. The applicant provides medical records that were not reviewed by the Board in his previous case. These documents are considered new evidence that now warrants consideration by the Board. 4. The applicant enlisted in the Delaware Army National Guard (DEARNG) on 8 September 1977. His record is void of evidence that shows he was suffering from mental health issues at the time of enlistment. 5. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following infractions: a. on 6 February 1978, for disobeying a lawful command from a commissioned officer, on or about 30 January 1978, and for disobeying a lawful order on the same date; and b. on 16 March 1978, for disobeying a lawful order from a commissioned officer, on or about 11 March 1978. 6. Orders 170-23, issued by Headquarters, First U.S. Army, Fort George G. Meade, MD, dated 24 September 1979, ordered the applicant to active duty, effective 13 November 1979, for a period of 20 months and 5 days. He was ordered to report to the U.S. Army Reception Station, Fort Dix, NJ. 7. Orders 155-3, issued by the DEARNG on 5 October 1979, discharged the applicant from the ARNG, effective 12 November 1979 and assigned him to the U.S. Army Reception Station Fort Dix, NJ, with an ultimate assignment to Headquarters Fort Monroe, VA. These orders also show he received a general discharge and was issued a National Guard Bureau (NGB) Form 56A (Certificate of General Discharge from the Federally Recognized ARNG). 8. The applicant failed to report as ordered and on 13 November 1979, he was carried in an absent without leave (AWOL) status. He was dropped from Army rolls on 12 December 1979. He was returned to military control on 20 February 1980 and assigned to the Personnel Control Facility, Fort Dix. As a result of his accumulation of lost time while in an AWOL status, his contract term was extended and his expiration term of service date was adjusted from 18 July to 24 October 1981. 9. The applicant was reassigned to the 414th Signal Company, Fort George G. Meade, MD effective 13 March 1980. 10. The applicant accepted NJP on 7 November 1980, under the provisions of Article 15 of the UCMJ, for being disrespectful in language toward a noncommissioned officer, on or about 22 October 1980. 11. Before a general court-martial at Fort George G. Meade, MD, on 16 May 1981, the applicant was convicted of a single specification of Charge I (for violating Article 128 of the UCMJ); specifically, he was convicted of assaulting a fellow Soldier by cutting him on the neck and face with a sharp instrument, thereby inflicting grievous bodily harm, on or about 19 March 1981. He was sentenced to be discharged from the service with a bad conduct discharge, a forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement at hard labor for a period of two and a half years. 12. The applicant began a period of confinement at the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, KS on or about 27 May 1981. 13. The convening authority approved the above sentence on 7 July 1981, but the execution of that portion of the sentence adjudging confinement at hard labor in excess of two years was suspended for six months, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. The convening authority further ordered that the record of trial be forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 14. The applicant was treated at the USDB on 15 January 1982, for a head laceration he sustained after falling down the stairs. His injury consisted of a 1.5 inch laceration to his scalp, which required 8 stiches. 15. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the applicant's sentence on 22 March 1982. The U.S. Court of Military Appeals denied his petition for review. 16. General Court-Martial Order Number 524, issued by the USDB, Fort Leavenworth, KS on 26 July 1982, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered duly executed. 17. The applicant was discharged from the USAR on 10 August 1982, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as directed by his court-martial order. His DD Form 214 confirms he received a bad conduct discharge. 18. The applicant's record is void of documentation that shows he was experiencing issues related to non-receipt of pay and allowances prior to his period of confinement. 19. The applicant was diagnosed with "schizophrenic disorder, undifferentiated type 295.9x" on 3 January 1983, while still incarcerated at the USDB. 20. The applicant petitioned the ABCMR, on or about 24 August 1983, for an upgrade of his bad conduct discharge. The Board denied his petition on 1 February 1984. The Record of Proceedings in this case established that: a. The applicant was involuntarily ordered to active duty by the DEARNG on 13 November 1979; however, he did not report until 20 February 1980. b. On 16 May 1981, the applicant was tried jointly with another Soldier and convicted by general court-martial of aggravated assault, in violation of Article 128 of the UCMJ. c. The applicant pleaded guilty pursuant to a pretrial agreement. The testimony presented at the Article 32 pretrial investigation was as follows: (1) In the late afternoon of 19 March 1981, the victim was cleaning his car in the parking lot outside the barracks. He was approached by the applicant who stated that a hot plate in the victim's trunk was his. The victim told him to take it if it was his. The victim later testified that the hot plate was in the trunk of the car when he bought the car. (2) Later that evening the victim went to the enlisted club where he had about five beers before returning to the barracks. Upon his return, he began doing his laundry. At approximately 2000 hours, as he passed the applicant's room on the third floor, he heard the applicant say "I'm going to get [the victim] tonight." At approximately 2115 hours, the victim was carrying his last load of laundry from the first floor to his room on the third floor when he encountered the applicant and his accomplice near the third floor stairwell. The applicant said "What is it going to be, let's get it on," or words to that effect. (3) The victim proceeded down the stairs, followed by the applicant and his accomplice. As he reached the last flight of stairs, he was kicked in the back and fell down the stairs. When he reached the bottom, he tried to get up and was cut several times on the neck and near the mouth by the applicant, who was using what was believed to be a straight razor. The victim testified that the applicant and his accomplice continued to kick him in the stomach, face, chest, back, and neck. d. In consideration of all the evidence, allegations and information presented by the applicant in relation to the evidence from all the available records and the statutory and/or regulatory provisions pertaining thereto, it is concluded that: (1) The applicant's trial by general court-martial and subsequent discharge were essentially free from error and in conformance with law. It appears the court-martial had jurisdiction over the applicant and the offense he committed. Considering the serious nature of the applicant's misconduct, the sentence he received, as modified, appeared appropriate. (2) The applicant's contentions regarding jurisdiction were not supported by the evidence. His claims that the victim was in fact the aggressor were likewise not supported by the evidence. In any case, that issue was rendered moot by his guilty plea. e. The applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable material error or injustice to warrant a formal hearing. 21. The applicant provides three letters from the Resources for Human Development of Wilmington, DE, which show he has been diagnosed with, and is receiving treatment for, mental health issues including major depression. He further provides approximately 70 pages of military and civilian medical records that document numerous other physical and mental issues. 22. During the processing of this case, a medical advisory opinion was obtained from a staff psychologist with the Office of The Surgeon General (OTSG). It states: a. The applicant requested that the Board upgrade his discharge. The Office of the Surgeon General was asked to "determine if there is a nexus between the information/diagnoses contained in that documentation and the misconduct that resulted in the applicant's discharge." This opinion is based solely on the information provided by the Board as the Department of Defense electronic medical record was not in use at the time of his service. b. The applicant reported that he had mental health issues at the time of his enlistment and should not have been accessed. He slated that during service he was "struck by brass knuckles in the head which caused head injuries leading to mental stress," adding that he "was not in my right state of mind" at the time of his misconduct, aggravated assault with a knife. He also observed that during his two-and-a-half-year confinement he was not being paid and was unable to support his family. c. A disability determination dated 10 May 1990 indicates a primary diagnosis of "Fracture of Thumbs" and a secondary diagnosis of "Mental Retardation." Psychological testing administered on 1 May 1990 revealed the applicant had obtained a Full Scale of 72 on the Wechsler Adult Intelligence Scale-Revised, placing him in the Borderline range of intellectual functioning. A psychiatric consult dated 3 January 1983 from an unidentified hospital observed that he had been confined for nearly two years for an assault. He was diagnosed with Schizophrenia, Undifferentiated Type and prescribed Haldol and Cogentin. The provider notes that a previously administered Minnesota Multiphasic Personality Inventory (MMPI) showed "extremely high depression (100) and schizophrenia (95) scores." He also makes reference to "previous involvement in psychiatric treatment" of which there is no evidence in the file. d. Records indicate the applicant has received vocational rehabilitation and support through the Delaware Department of Labor beginning in 1983 and has been followed by the RHD, a national human services nonprofit supporting people of all abilities. RHD documentation states that the applicant "has been diagnosed with a mental illness that has rendered him disabled." On a Psychiatrist Annual Review/Assessment dated 16 February 2015, shows he was diagnosed with Major Depressive Disorder, recurrent, with psychosis. e. Despite the absence of behavioral health (BH) records during the applicant's military service, the severity of his subsequent impairment and his need for continued supportive services suggests that it is more likely than not that at the time of the misconduct, he met the criteria for a BH condition that might have mitigated his behavior. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation in effect at the time of the applicant's discharge provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that 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. 2. 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. DISCUSSION: 1. The applicant's request for an upgrade of his bad conduct discharge was carefully considered. 2. The evidence of records shows the applicant's bad conduct discharge was the direct result of his assault upon a fellow Soldier, in which he cut the fellow Soldier on the neck and face with a sharp instrument, thereby inflicting grievous bodily harm. 3. The applicant contends: a. At the time of his enlistment, he was suffering from mental health issues. However, his record is void of evidence that shows he was suffering from mental health issues at the time of enlistment. b. He sustained a series of body and head injuries and despite reporting the injuries to the appropriate staff, he did not receive the help and support he needed to properly heal. His record shows he sustained a scalp laceration during his period of confinement at the USDB; however, that incident occurred after the misconduct for which he was tried by court-martial. c. His discharge was a direct result of his mental health condition at the time. The evidence of record does show he was, in fact, diagnosed with schizophrenic disorder on 3 January 1983; however, his discharge resulted from his court-martial conviction on 16 May 1981, and there is no evidence that he suffered from a mental health issue during the period in which he committed the misconduct for which he was tried by court-martial. 4. During the processing of this case, a medical advisory opinion was obtained from a staff psychologist with OTSG, who opined that despite the absence of BH records during the applicant's military service, the severity of his subsequent impairment and his need for continued supportive services suggests that it is more likely than not that at the time of the misconduct, he met criteria for a BH condition that might have mitigated his behavior. 5. Notwithstanding the conclusions raised in the OTSG advisory opinion, the evidence of record shows the applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial, which was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 6. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Neither the evidence of record nor the applicant’s statements are sufficient to warrant clemency in this case. 7. The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. In view of the foregoing, there is an insufficient basis for granting the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004214 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004214 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2