ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160014592 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 28 July 2016 * DD Form 149, undated * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 28 July 2016 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), covering the period 30 August 1961 through 9 September 1963 * DD Form 214, covering the period 10 September 1963 through 7 September 1965 * National Personnel Records Center letter, dated 19 July 2016 * Department of Veterans Affairs (VA) Form 9 (Appeal to Board of Veterans Appeals), undated FACTS: 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) on 10 April 1974, without an available Docket Number. 2. The applicant states: a. He requests an upgrade of his bad conduct discharge in order to receive Government benefits. He reenlisted for 6 years in order to stay in his own unit for 6 months, but after only 2 months he was sent to Fort Benning, GA. The Army was wrong because they transferred him too soon. The rule of reenlistment is that you stay at the place where you reenlist for 6 months. b. In 1965 he went absent without leave (AWOL). The only reason he did this is because his commanding officer did not order his discharge and issue him his DD Form 214. 3. His DD form 4 (Enlistment Record – Armed Forces of the United States) shows the applicant enlisted in the Regular Army on 30 August 1961 for an initial airborne assignment. He was subsequently sent to Company B, 2nd Airborne Brigade, 504th Infantry Regiment and awarded the Parachutist Badge. 4. A DA Form 26 (Record of Court Martial Conviction), shows he was arraigned and tried by summary court martial on 19 June 1962, where he was found guilty of sleeping on his post while being posted as a sentinel on 10 June 1962. He was sentenced to hard labor without confinement for 30 days and forfeiture of $25.00 for 1 month. 5. He was honorably discharged on 9 September 1963, after 2 years net active service this period for the purpose of immediate reenlistment. 6. His DD Form 4, dated 10 September 1963 shows he reenlisted for 6 years on 10 September 1963 for his present duty assignment. His unit at the time of discharge and reenlistment was Company B, 2nd Airborne Brigade, 504th Infantry Regiment. 7. His DA Form 24 (Service Record) shows he was en route to Fort Benning, GA, from 27 December 1963 through 26 January 1964 and was transferred to Company A, 3rd Battalion, 187th Infantry Regiment, Fort Benning, GA, on 27 January 1964. The impetus for and source of his reassignment are not in his available records for review. 8. Headquarters, 1st Brigade, 11th Air Assault Division, Special Court-Martial Order Number 51, dated 30 April 1964, shows he was arraigned and tried before a special court-martial where he was charged with and found guilty of: * absenting himself from his unit without authority from on or about 25 February 1964 through on or about 27 February 1964 * absenting himself from his unit without authority from on or about 4 March 1964 through on or about 21 March 1964 9. On 17 April 1964, he was sentenced to confinement at hard labor for 3 months and forfeiture of $60.00 per month for 3 months. On 30 April 1964, the sentence was approved and would be duly executed. 10. Headquarters, Fort Leonard Wood General Court-Martial Order Number 29, dated 25 June 1963, shows he was arraigned and tried before a general court-martial where he was charged with and found guilty of absenting himself from his organization without proper authority from on or about 16 September 1964 through on or about 24 April 1965. 11. On 9 June 1965, he was sentenced to confinement at hard labor for 4 months, forfeiture of all pay and allowances, and discharge from the service with a bad conduct discharge. On 25 June 1965, only so much of the sentence as provided for bad conduct discharge, forfeiture of $55.00 pay per month for 4 months, and confinement at hard labor for 4 months was approved. 12. On 19 July 1965, the Board of Review, having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such findings of guilty and sentence were affirmed. 13. On 7 September 1965, he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharges) for other than desertion (court-martial), after 9 months and 14 days of net active service this period, with 440 days of lost time. His DD Form 214 covering this period does not reflect a bad conduct discharge, but rather his service was characterized as under other than honorable conditions. 14. The applicant applied to the ABCMR requesting a discharge upgrade and on 10 April 1974, the Board determined that insufficient evidence had been presented to indicate probable material error or injustice. Accordingly, his application was denied. 15. The applicant provided an undated VA Form 9, wherein he stated he was AWOL in 1964 because he was put in the wrong platoon as a specialist four and given an M-16 rifle. In 1965, he was AWOL because the company officers in charge did not order his discharge. His records are available and show he has schizophrenia. 16. On 27 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor stated a thorough review of the applicant’s military history found no data which would mitigate his misconduct. There is no indication the applicant claimed any medical or behavioral health issues at the time of his discharge. The data derived from his VA records indicates he was initially diagnosed with behavioral health conditions 40 years after his Army separation. There is no data to indicate these diagnoses were at all related to his misconduct from 40 years earlier. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 2 April 2019 and given an opportunity to submit comments, but he did not respond. 18. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 19. Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel with a dishonorable or bad conduct discharge pursuant to an approved sentence by a general court-martial or a special court-martial imposing a bad conduct discharge. 20. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 21. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs 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. BOARD DISCUSSION: After review of the application and all evidence, the Board denied relief. The Board agreed the applicant was medically evaluated during his period of service; however, his records indicate that at the time of his separation, he had stated that he was in good health and the VA data indicate that his behavioral health diagnoses were initially diagnosed 40 years after the applicant was separated from the U.S. Army. There is no data to indicate that these diagnoses were at all related to Mr. Smith's misconduct 40 years earlier. The Board agreed that the applicant’s discharge was proper and fitting for the misconduct and there is no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. The VA properly provided her support and benefits for service connected medical concerns post-service. 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: 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): Not Applicable REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 3. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs 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. 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. 4. Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge), in effect at the time, set forth the basic authority for the separation of enlisted personnel with a dishonorable or bad conduct discharge pursuant to an approved sentence by a general court-martial or a bad conduct discharge imposed by a special court-martial. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. Chapter 3, currently in effect, provides that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed. 6. Army Regulation 601-210 (Army Retention Program), in effect at the time and currently, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and the Army National Guard. a. The current version of the regulation allows for enlistment in accordance with program 9B (U.S. Army Station-Unit-Command-Area Enlistment Program) for non-prior service enlistees and prior service enlistees. For prior service enlistees, enlistment under this program allows for a first assignment to a station, unit, command, or area, airborne training if option 4 with a committed assignment is requested, or a minimum of 12 months from arrival date at the first duty assignment. b. Persons enlisting under this program may elect to waive the enlistment program at any time. If so, he or she will be used according to the needs of the Army and be required to complete the term of service for which enlisted. c. If the station, unit, command, or area to which a person is assigned or attached under the provisions of this program is deployed, relocated, reorganized, or re- designated, the person will remain with the unit of assignment. No guarantee of “location” is made when enlisting for a specific area, unit, or command. If the station, unit, command, or area is inactivated, disbanded, or discontinued, the person will be subject to reassignment according to the needs of the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014592 6 1