DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 1STH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 15 November 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20170008191 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 19 October 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I have determined that the applicants discharge should be upgraded to an honorable discharge. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as "honorable." I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 15 March 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: U? .t.,.- Encl --- Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20170008191 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 BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20170008191 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. _________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. BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20170008191 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 his previous request to upgrade the characterization of his service to honorable. 2. The applicant states, in effect, that a. Prior to being drafted, he excelled in school and he had no history of disciplinary actions or personality disorders. He contends that he was an excellent Soldier during his initial training despite having two traumatic incidents. He states that the first event occurred on the firing range during his Basic Combat Training (BCT) when a Soldier pointed a loaded M-14 Rifle at his head and face. The second traumatic event took place during his Advanced Individual Training (AIT) when he was accidentally hit in the rear right shoulder by the recoil from a Howitzer. He was in excruciating pain but was told to “suck it up.” b. After these events he feared for his life and he went into survival mode. His fear was heightened by racially motivated violence (the assassination of Martin Luther King Jr., Malcom X, and John and Robert Kennedy). c. Upon his discharge he was diagnosed with chronic, moderately severe personality disorder manifested by resentment towards authority with no apparent reason, and sociopathic tendencies. d. The Board’s Record of Proceedings, dated 21 February 2017, is missing paragraph 11. Further, he contends that he never received the counseling referred to in paragraphs 6, 7, and 8 of ABMCR Docket Number AR20150015085, dated 21 February 2017. 3. The applicant provides: * Army Discharge Review Board (ADRB) Brief and Prehearing Review * Counseling and Rehabilitation memorandum, dated 17 November 1970 * Psychiatric Evaluation, dated 12 October 1970 * Medical Records-Progress Notes, dated 27 April 2006 * three witness statements, dated 29 September 2015 * physician’s letter, dated 15 February 2016 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150015085 on 21 February 2017. 2. During the Board's original review of this case it was determined that the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. The applicant now provides new evidence, which warrants consideration by the Board. 3. The applicant was inducted into the Army of the United States on 20 May 1970. He completed BCT with excellent conduct and efficiency ratings. He subsequently completed AIT at Fort Sill, OK; however, his conduct and efficiency was rated as unsatisfactory during this period. 4. A DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows that on 8 September 1970, a special court-martial (SPCM) found him guilty of disobeying a lawful order from a noncommissioned officer. He was sentenced to forfeiture of $62.00 pay for 4 months and confinement for 4 months. 5. He underwent a psychiatric evaluation on 12 October 1970, which diagnosed him with chronic personality disorder manifested by resentment towards authority and with sociopathic tendencies. However, he was found mentally responsible and able to distinguish right from wrong and adhere to the right. He was competent to understand and participate in any board proceedings deemed appropriate by his chain of command and he was cleared for any administrative or disciplinary action. The examining psychiatrist recommended separation under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability). 6. The applicant was notified of the commander’s intent to initiate separation action against him in accordance with Army Regulation 635-212 because of unsuitability. His commander cited the applicant’s court-martial conviction, 53 days of lost time as a result of confinement, his present mental attitude and capacity, his dislike for the military, his lack of self-motivation, and his negative attitude toward the Army. 7. On 13 November 1970, the applicant acknowledged receipt of the separation notification for unsuitability. He consulted with legal counsel and he was advised of the bases for the contemplated separation action for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and declined to make a statement in his own behalf. He also waived further representation by counsel. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. Further, he acknowledged he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws. 8. On 17 November 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed that he be furnished a General Discharge Certificate. 9. On 19 November 1970, he was discharged. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged in the rank of private under the provisions of Army Regulation 635-212 by reason of unsuitability with separation program number (SPN) 46A (Apathy). His character of service was under honorable conditions (general). He completed 3 months and 29 days of total active service. 10. On 22 July 1977, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge under the Department of Defense (DOD) Discharge Review Program (Special) (SDRP) as not meeting the eligibility criteria. On 12 September 1978, the ADRB denied a second request for an upgrade of his discharge. 11. The applicant's case was also reviewed and denied following the implementation of the 1977 Brotzman Memorandum and 1978 Nelson Memorandum, which required retroactive application of regulatory changes governing administrative separations based on personality disorders. This denial was based on the fact the applicant was discharged for unsuitability – apathy not due to a diagnosis of a personality disorder. 12. The applicant provides: a. A letter, dated 15 February 2016, from a Board Certified Occupational and Family Medicine physician which states the applicant’s condition of personality disorder was acquired and aggravated on active duty. She continues to treat him for his acquired personality disorder, depression, and anxiety. b. His Department of Veteran Affairs’ Problems List showing he was diagnosed with post-traumatic stress disorder (PTSD). c. A witness statement, dated 29 September 2015, from a fellow Soldier recounting an incident during BCT at Fort Lewis, WA. He stated that as he walked down to the shooting range to take his position, he saw what appeared to be another individual in the next lane pointing in the direction of the applicant. It was implicit that the individual pointing the rifle was not comfortable around and did not tolerate people of color very well. d. A letter from his daughter wherein she discusses her interactions with her father during her childhood. She contends that although her father is a dependable, caring, Christian, family oriented man, he did exhibit some abnormal behavior, specially being unaffectionate, bashful, antsy, and withdrawn. e. A letter of support, dated 2 August 2015. This individual discusses two experiences wherein the applicant became very upset when items he ordered at a restaurant were not available. f. Extracts from his Army Discharge Review Board (ADRB) Brief and Prehearing Review. 13. The Board forwarded his medical records to the Army Review Boards Agency clinical psychologist for review. The clinical psychologist rendered an advisory opinion on 13 June 2017 stating that after a thorough review of available medical records, there was no evidence that the applicant’s personality disorder was acquired after entering the military. There was evidence that his misconduct was willful (disobeying a lawful order) and that he was separated based on unsuitability/apathy and not due to a diagnosis of a personality disorder. This observation does not negate the applicant’s post-service treatment and diagnosis of acquired personality disorder and depression and anxiety; however, a review of available documentation found no evidence of mistreatment or a service-connected behavioral health condition that would support a change to the characterization for the discharge in this case. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop the individual as a satisfactory Soldier were unlikely to succeed. 2. Army Regulation 635-200 sets forth the policy for administrative separation of enlisted personnel. 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. 3. On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual. 4. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required. Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of the Army (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 6. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests an upgrade of his discharge to honorable. 2. The applicant completed approximately 4 months of active duty service with 61 days of lost time due to confinement. He contends that the reason for his misconduct was due to two traumatic experiences, and he provides a witness statement, which confirms the applicant had a loaded weapon pointed at his head during BCT on a firing range. In addition, he provides medical records confirming his treatment for acquired personality disorder and PTSD. 3. A special court-martial convicted the applicant of disobeying a lawful order and sentenced him to 4 months confinement. He was subsequently discharged for unsuitability due to apathy. His commander noted his personality disorder, lack of self-motivation, and negative attitude toward the military as having been a constant problem. 4. The applicant contends that he was never counselled during his separation processing; however, his separation packet bears his initials and signatures acknowledging that he was counselled and elected to waive his rights. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors. 5. The ARBA Clinical Psychologist conducted a review of the available documentation and found no evidence of mistreatment or a service-connected behavioral health condition that would support a change to the characterization of the discharge in this case. 6. Further, he states that paragraph 11 is missing in the original Record of Proceedings, and although he is correct, this is clearly an administrative error with the numbering of the paragraphs. No relevant information is missing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170008191 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008191 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2