ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20160011180 APPLICANT REQUESTS: In effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC90-10211 on 15 May 1991. Specifically, he requests his undesirable discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) and Attorney's Letter, dated 10 June 2016 * DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 31 March 1970 * DA Form 20 (Enlisted Qualification Record), dated 1 April 1970 * DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) * DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 14 November 1970 * General Court-Martial Order Number 11, issued by Headquarters, 2nd Infantry Division on 16 August 1971 * General Court-Martial Order Number 12, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 7 January 1972 * General Court-Martial Order Number 51, issued by Headquarter, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 3 May 1972 * Standard Form (SF) 88 (Report of Medical Examination), (undated) * Report of Medical Examination, dated 27 February 1973 * SF Form 93 (Report of Medical History), dated 27 February 1973 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 February 1973 * Certificate of Marriage, dated 23 September 1988 * Certificate of Live Birth, dated * Character Reference Letters, dated 8 March 2016, 23 April 2016, 28 April 2016, and 27 May 2016 * Criminal History Request, dated 4 May 2016 * Notarized Self-Authored Statement, dated 29 May 2016 * Army Review Boards Agency Letter (ARBA), dated 23 June 2016 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC90-10211 on 15 May 1991. 2. The applicant states the conduct for which he received an undesirable discharge was the by-product of untreated mental illness, for which he sought treatment and was denied. He plead guilty to general court-martial charges out of fear that racism would undermine the fairness and impartiality of his hearing. He has become an honorable and productive citizen who merits clemency relief. 3. The applicant enlisted in the Regular Army on 31 March 1970. 4. The applicant accepted nonjudicial punishment (NJP) on 14 November 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty, on or about 12 November 1970. 5. General Court-Martial Order Number 11, issued by Headquarters, 2nd Infantry Division on 16 August 1971, shows the applicant was convicted on 14 April 1971, pursuant to his pleas, of being absent without leave (AWOL) from on or about 23 January 1971 until on or about 3 February 1971, and for committing an assault upon another Soldier by cutting him on the left thigh and on both sides of his neck with a straight razor. He was sentenced to confinement at hard labor for 11 months, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and separation from service with a bad conduct discharge. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. General Court-Martial Order Number 12, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 7 January 1972, restored the applicant to duty pending completion of the appellate review. That portion of the sentence adjudging forfeitures would not apply to pay and allowances becoming due during the period commencing on the date of the order, and terminating on the date of the order directing execution of the sentence. 7. General Court-Martial Order Number 51, issued by Headquarters, U.S. Army Engineer Center and Fort Belvoir, VA on 3 May 1972, suspended the applicant's sentence for six months, at which time, unless the suspension was sooner vacated, the unexecuted portions of the sentence would be remitted without further action. 8. It appears that court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) or any accompanying documentation is not available for review. Nevertheless, there is evidence that shows he consulted with military counsel, and following such consultation, he submitted a request for discharge on or about 9 February 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial. He declined to make a statement in his own behalf. 9. The appropriate authority approved the applicant's request for discharge on 13 February 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade and be furnished an Undesirable Discharge Certificate. 10. The applicant was discharged on 27 February 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 confirms he was issued an Undesirable Discharge Certificate and his service was characterized as under other than honorable conditions (UOTHC). 11. In an application to the ABCMR dated 20 September 1990, the applicant requested his undesirable discharge be upgraded to an honorable discharge. In ABCMR Memorandum of Consideration, dated15 May 1991, the examiner noted that between May and November 1970, the applicant had received NJP on three occasions, under the provisions of Article 15 of the UCMJ, for failure to repair and two occasions for being absent from his place of duty. The examiner also noted that on 26 December 1972, special court-martial charges were preferred against the applicant for assaulting a military policeman. 12. An advisory opinion was obtained on 27 December 2018 from the ARBA Clinical Psychologist, Medical Advisor. This official opined and noted that her opinion was based on the information provided to the Board, to include the applicant's submissions; National Archives and Records Administration; and the Joint Legacy Viewer (JLV). Based on a thorough review of available records, there is no evidence [applicant] experienced or met criteria for any behavioral health condition while in service and has not been diagnosed with a behavioral health condition post-service. Furthermore, behavioral health conditions would not be mitigating for or reasonable related to the reasons for separation. In addition, there is evidence [applicant] displayed conduct issues prior to the Army and post-service as an adult. As such, it is more likely than not his misconduct was unrelated to a behavioral health condition caused or aggravated by military service. At the time of separation, he met medical retention standards, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). In summary, there is no evidence that a behavioral health condition mitigated [applicant]'s misconduct and no change to the characterization and reason for discharge is recommended. 13. The applicant was provided a copy of the advisory opinion for his information and/or possible rebuttal. He provided a rebuttal in which he stated the following: a. When he entered the military at the age of 17, he did so with honorable intentions. I wanted to serve his country and accomplish something greater than himself. Being sent to Korea in 1970 was an entirely different world. He was homesick, intimidated by racism and bigotry, and he had no idea of how to cope with his feelings. b. Paragraph 2 of the advisory opinion states as fact the erroneous story to which he agreed because he feared for his life. As he set forth in his application, the incidents that are reported in his record are not accurate. The truth is that he went into the village one night with two other Soldiers who were white. A girl that he knew from the village walked up, and the Soldiers started saying racist things to him, including comments about how African Americans (not their word) "grew tails after midnight," among many such comments. He asked them to cool it, but they would not stop. The girl laughed, and again he asked that they cut it out. They continued and eventually there was fighting. The fighting escalated to a broken bottle and a razor. He was put in the stockade, and nothing happened to the two white Soldiers. He plead guilty to whatever they wanted him to sign as it seemed hopeless to speak out against two white men and he did not want to spend another night in the small cell. c. When he was restored to active duty, he was sent back to Korea to the same area, in the same village, with the same people, and the same emotional triggers. It was a place where he had suffered physical injury and intimidation. Looking back, while he is so sorry for how he behaved as a young Soldier, he believes he was set up for failure. d. The incidents that occurred during his service and the way that it was handled by the Army have haunted him. They have affected some of the decisions he made as an adult. He has carried this conflict around with him and he has applied for a discharge upgrade because he wants closure. He is not seeking benefits, he just wants closure. e. He was too young to understand that he was going through behavioral issues and he did not believe he could trust anyone. Since that time, he has sought counseling from mental health professionals, from the Department of Veterans Affairs to community programs. It has been extremely difficult to get the help he needs because of his UOTHC discharge. He has been afraid of being stigmatized further and of not being able to get employment. 14. Army Regulation 635-200 sets 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. 15. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, letters of support, the medical advisory opinion, and his rebuttal were carefully considered. The majority of the Board agreed the discharge characterization was warranted as a result of the misconduct. The dissenting vote recommended an upgrade to general based on the applicant’s statement, the time period of the offense, how a minority Soldier in Korea could have been facing discrimination, and for being sent back to the same people after confinement. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 to amend the decision of the ABCMR set forth in Docket Number AC90- 10211 on 15 May 1991. 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): Not Applicable REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 HD. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, 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 grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160011180 4 1