ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160014645 APPLICANT REQUESTS: restoration of his rank and grade from private (PV2)/pay grade E-3 to specialist four (SP4)/pay grade E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement dated 8 April 2014 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 6 April 1962 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in a statement previously considered by the Army Board for Consideration (ABMCR) Army Docket Number AR20140007340 on 9 December 2014: a. He reenlisted in the Regular Army (RA) for 6 additional years, his record was perfect. He was assigned to Fort Monmouth, NJ, to attend school. On 1 July 1961, he had a motorcycle accident while on a weekend pass in Philadelphia. He hit a car that pulled into his lane, flipped over the car, and went head first into a brick wall. He was taken to a local hospital and then transferred to the Naval Hospital, Philadelphia, PA. He was released after 11 days and returned to duty at Fort Monmouth. b. He was still having problems with his memory but thought nothing of it. One day he wandered off base without permission and returned a couple of days later. He was court-martialed, reduced from the rank of SP4/E-4 to PVT/E-1, and put in the stockade. When he was released from the stockade, he was transferred to Fort Hood, TX. c. While at Fort Hood, he was having a lot of problems, such as forgetting things and having severe pain in his head. He received treatment but it didn't do him any good a. and he asked his doctor to be released from the Army. He doesn't know what happened but he was issued a general discharge under honorable conditions. d. He now requests restoration of his rank to SP4/pay grade E-4 through a separate application to the Board. 3. The applicant enlisted in the Regular Army on 13 August 1958. On 17 November 1960, he was honorably discharged for the purpose of immediate reenlistment. He was issued a DD Form 214 at the time showing his rank as temporary specialist four (SP4) with a date of rank of 4 November 1960. A review of item 32 (Remarks) of his DD Form 214 shows his permanent rank was private/pay grade E-2. 4. On 18 November 1960, he reenlisted in the Regular Army in the rank and grade of private/pay grade E-2. 5. On 10 June 1961, he was assigned to the U.S. Army Signal Communications School Regiment, Fort Monmouth, NJ. 6. Within his official personnel record is his DA Form 24 (Service Record) showing in Section I (Appointment’s, Promotions, or Reductions) to following sequence: * private/pay grade E-2 (permanent) – 18 November 1960 authorized by Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) * SP4/pay grade E-4 (temporary) – 18 November 1960 by Special Order 238, dated 18 November 1960 * private first class (PFC)/pay grade E-3 (temporary) – 22 August 1961 by Special Court-Martial No. 20 dated 22 August 1961 * private/pay grade E-1 (permanent) – 5 September 1961 by Special Court-Martial No. 21 dated 5 September 1961 * private/pay grade E-2 (permanent) – 1 November 1961 by paragraph 21a, Army Regulation 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel) 7. His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 July 1961, wherein it stated he had been on authorized pass from 30 June to 3 July 1961. On 1 July 1961, he was driving a motorcycle in Philadelphia when the gears jammed and he crashed into a wall. He was admitted to the U.S. Naval Hospital on 1 July 1961 and treated for concussion of the brain and a sprain of the left wrist. On 11 July 1961, he was released from the hospital and returned to the unit. He went on sick call at the Patterson Army Hospital, Fort Monmouth, and returned to duty. On 26 September 1961, his injury was found to have been incurred in the line of duty. 8. His record contains a hospital report, dated 11 July 1961, it stated in pertinent part: 1. a. He was treated for concussion of the brain on 1 July 1961. He was not rendered unconscious, seen at a local hospital, and sent home. He later became sick to his stomach, vomited, had a headache, and a painful left wrist. Because of increasing drowsiness, he was brought to the Naval Hospital and admitted. b. His physical examination was within normal limits except for his left wrist which was not broken. Neurologically, he was lethargic but responded well to painful stimuli. His laboratory work was normal and X-rays of the skull, wrist, and chest were normal. Treatment consisted of observation of vital signs and repeated neurologic examination. Over the ensuing days, he became asymptomatic with only residual left wrist pain. On 11 July 1961, he was asymptomatic and ready to be discharged and returned to duty. 9. On 21 August 1961, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 12 to 14 August 1961. The punishment imposed included reduction to the rank of private first class (PFC)/E-3. The court-martial order is not available for the Board’s review; however the court-martial itself is recorded on DA Form 26 (Record of Court-Martial) which is filed in his official military personnel file. The reduction in rank is also recorded on his DA Form 24 (Service Record) Section I (Appointments, Promotions and Reductions) again filed in his official military personnel file. 10. On 28 August 1961, he was convicted by a summary court-martial of one specification of being AWOL from 23 to 24 August 1961. The punishment imposed included reduction to PVT/E-1. Again, the court-martial order is not filed in his record; however, it is recorded on DA Form 26 and the reduction in rank is recorded on his DA Form 24. Of note, there are no reduction orders filed in his record. 11. On 28 January 1962, he was assigned to the 1st Medium Tank Battalion (MTB), 67th Armor Regiment, Fort Hood, TX. He subsequently went on sick call on 5, 8, 23, and 28 February 1962. 12. On 26 February 1962, he underwent a mental status evaluation. In a report, dated 12 March 1962, the examining psychiatrist stated: a. The applicant was referred for a mental evaluation at the request of his unit dispensary. He had complained of continuous headaches which become severe whenever he was under any pressure from authorities. He had been seen on several occasions by mental hygiene personnel at Fort Monmouth, and was considered for separation under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability). He had been thoroughly evaluated to determine any physical cause for his headaches and all results were negative. His adjustment to the military was generally unsatisfactory and his usual response to pressure was to retreat from the stress by refusing to work at his assigned tasks or going AWOL. a. b. He was cooperative, his affect was appropriate, and he was well oriented. There was no evidence of a chronic thinking disorder and he would no doubt continue to be a problem if retained on active duty. The examining psychiatrist found the applicant had no disqualifying mental or physical defects warranting a discharge through medical channels. c. He was diagnosed with chronic, severe, passive-aggressive reaction manifested by repeated AWOL, retreat from stress, somatic complaints without a physical basis, and poor attitude toward authorities. His condition was determined not to be amenable to hospitalization, treatment, disciplinary action, training, transfer, or a change in duty. The recommendation was separation under the provisions of Army Regulation 635-209. 13. The applicant was subsequently notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-209, by reason of unsuitability. He acknowledged receipt of the notification, that he was advised of the basis for the discharge action, and that he was advised of the procedures and rights available to him. He waived consideration of his case by a board of officers, elected not to submit a statement in his own behalf, and waived representation by military counsel. 14. On 17 March 1962, his immediate commander initiated discharge action against him under the provisions of Army Regulation 635-209 for unsuitability with a recommendation that he be given a general discharge. The commander stated the applicant displayed marked irresponsibility and would undoubtedly become a serious disciplinary problem. He was assigned to the unit on 28 January 1962 and since then he received unsatisfactory conduct and efficiency ratings. 15. On 20 March 1962, the separation authority approved his discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate. On 6 April 1962, he was discharged accordingly. 16. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209, by reason of unsuitability - character or behavior disorder (separation program number (SPN) 264) with an under honorable conditions characterization of service. During this period of service, he completed 1 year, 4 months, and 16 days of net active service with 3 days of lost time due to being AWOL. His rank as recorded on his DD Form 214 was private/pay grade E-2. His date of rank was 1 November 1961. 17. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 18. The applicant did apply to the ABCMR and in its decision found in Army Docket Number 20140007340, dated 9 December 2014, the Board upgraded his discharge to honorable due to the Brotzman and Nelson Memorandums published in 1977. These 1. memorandums required retroactive application of revised policies, attitudes and changes in reviewing application for upgrade of discharge based on personality disorders. 19. On 22 January 2015, the applicant was issued an Honorable Discharge Certificate and a new DD Form 214 showing an honorable characterization of service. His rank is shown as private/pay grade E-2. 20. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, 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. 21. On 29 January 2019, the staff of the Army Review Boards Agency sent the applicant a letter asking him to provide medical documents supporting his motorcycle accident. 22. The applicant responded by providing excerpts from his military service treatment records showing he was involved in a motorcycle accident and the extent of his injuries. 23. On 11 March 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions including mild traumatic brain injury and there was no indication for physical disability evaluation system processing. Personality disorders are not boardable conditions for the disability evaluation system. There is no available evidence supporting a change to his narrative reason for separation. Concerning his misconduct that led to his court- martials and reduction in rank, the advisory found the applicant did not have a mitigating medical or behavioral health condition for the offense changed (AWOL) which led to his 1. early separation from the Regular Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 24. The applicant was provided a copy of the advisory opinion on 22 March 2019 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, to include the medical advisory, the Board found there to be no error or injustice which would warrant restoring the applicant’s rank to Specialist E4. The Board concluded the applicant was reduced based upon misconduct which would warrant such punishment. For that reason, the Board recommended denying the applicant’s requests for relief. 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. 5/13/2019 X CHAIRPERSON Signed by: 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. 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 Army Board for Correction of Military Records (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. 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 UCMJ, 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 UCMJ 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. 4. Army Regulation 600-200 (Enlisted Personnel Management System) prescribes the policies and procedures governing promotion, reduction, and lateral appointments of all enlisted personnel on active duty other than active duty for training. Court-martial authorities had the authority to reduce Soldiers to a lower enlisted grade based on their promotional authority. Normally, upon reduction by a court-martial, reduction orders were published reducing the Soldier to the rank as implemented in the court-martial phase of punishment. Soldiers were then required to meet the time in grade and time in service requirements in order to be advanced or promoted by the appropriate promotion authority. 5. Army Regulation 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel) in effect at the time, prescribed to policies and procedures governing appointment and reduction of all enlisted personnel on active duty. Temporary appointment of enlisted personnel to all grade above E-3 and permanent appointment to E-3 will be announced in orders issued by the appointing authority. For appointment to grades in pay grades E-3 and E-4, company, troop, battery, or separate detachment authorities are authorized to promote Soldiers. a. For permanent appointment to PFC/pay grade E-3, appointment authorities may appoint all qualified personnel to the permanent grade of PFC/E-3 when they complete a. 8 months’ active duty and are in an appointable status. Unit or major command vacancies are not required. Orders are required. b. For temporary appointment to SP4/pay grade E-4, control will be exercised by all appointment authorities to insure that appointments do not exceed local pay grade vacancies, major command ceilings, or allotted quotas. For appointment to pay grade E-4, the time in pay grade E-3 was 6 months and a Soldier must have been recommended by a commander. .