BOARD DATE: 24 January 2020 DOCKET NUMBER: AR20160017148 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to general under honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 he believes his discharge was unjust; he provides additional details in a self-authored statement. a. He grew up on the eastern shore of a Mid-Atlantic state; he was the second oldest of six children. At age 15, he began working with his father, who was an oysterman. The applicant left high school in the 12th grade when his girlfriend became pregnant, and they decided to marry. He enlisted into the Army at 19 years of age, just as his father had done during World War II; the applicant wanted a better life for his family and himself. b. After enlisting, he went to Fort Bragg, NC for basic combat training (BCT), during which he scored 480 points on the physical fitness test. He then transferred to Fort Jackson, SC for advanced individual training (AIT), where he also did well. On completion of AIT, he was reassigned back to Fort Bragg and served as a cook in an ordnance company. His wife and two daughters (one an infant and the other a toddler) lived off-post; he and his wife did not have much money, and, at one point, his mess sergeant told the applicant he could take home some leftover pork chops for his family. A private saw him taking the pork chops and reported the applicant to the company commander; this resulted in the applicant going before a summary court-martial. c. The applicant was then put on extra duty at the Charge of Quarters' (CQ) office; soon after the "pork chop incident," the CQ (an acting sergeant) told the applicant to shovel waist-deep snow from the CQ building up to the end of the company area (about a quarter of a mile). The applicant refused, and when he saw the CQ writing him up, the applicant grabbed the paper away from the CQ and tore it up; the CQ and two other privates jumped the applicant and beat him up. d. The applicant left the scene and, on his way out, a sergeant stopped him to ask what had happened. When the applicant told him, the sergeant responded by bringing together some of the other black Soldiers; a riot then broke out and the military police were called to break it up. As a result, three Soldiers, including the applicant, were charged and sent to the stockade. They went before a court-martial and were found guilty (the applicant was defended by a white man). The court sentenced the applicant to 4 months in the stockade, but, after 2 months, he decided to break out due to the racial tensions in the stockade, and because he felt he was being treated unfairly. He hitchhiked all the way to Washington, D.C., where he personally spoke with his U.S. Congressman; the applicant provided the Congressman his court-martial documentation, and described the ways he had been unjustly treated. His Congressman said he would go to Fort Bragg and meet with the applicant's commander; at that point, the applicant turned himself in at the Congressman's office and they flew him back to Fort Bragg. e. On his return to Fort Bragg, they locked him up in the stockade, where they fed the applicant bread, water, and lettuce for 14 days. Within a few weeks of the applicant's return, his U.S. Congressman visited Fort Bragg and met with the applicant's company commander. The applicant noted, "He asked me what I wanted and I told him that I wanted out of the military." The applicant subsequently learned he would be discharged under other than honorable conditions, but they also told him he could file an appeal in 6 months. He never filed that appeal because he was young and, at the time, felt he was "done with the military." f. Since his discharge, the applicant has worked as a cook and done a variety of other jobs; he worked the longest at a local shipyard. He divorced his first wife and has since remarried; he has three daughters, one of whom is a lieutenant colonel in the Army. The only legal troubles he has had were a failure to pay child support in the early 1970s, after losing his job, and he served jail time on two occasions for a total of 2 months. Currently, he is unemployed, and receives social security and Medicare; his wife works part-time. He has numerous health problems, and he believes an upgraded character of service would allow him to obtain Department of Veterans Affairs (VA) benefits. He feels his request is warranted because he was racially targeted and treated unfairly while he was on active duty. 3. The applicant's service records show: a. On 6 February 1968, the applicant enlisted into the Regular Army for a 2-year term; he was 19 years old. b. While participating in BCT at Fort Bragg, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 9 until 11 March 1968 (2 days). Orders later transferred him to Fort Jackson for AIT, and he arrived at Fort Jackson on or about 15 April 1968. c. The applicant's DA Form 20 (Enlisted Qualification Record) shows, during AIT, the applicant was AWOL a second time from 6 through 12 May 1968 (7 days); however, his service record does not reflect any resulting disciplinary action. Effective 6 June 1968, his AIT chain of command promoted him to private (PV2)/E-2, after which orders reassigned him to Fort Bragg for duty; he arrived on 26 June 1968. d. While serving at Fort Bragg, the applicant was AWOL from 6 until 9 September 1968 (3 days), and again from 2 to 7 October 1968 (4 days). On 7 October 1968, he accepted NJP for his two periods of AWOL. e. On 14 November 1968, a special court-martial convicted the applicant of disrespectful language toward a noncommissioned officer (NCO), and the court sentenced him to hard labor without confinement for 45 days, forfeiture of $25 per month for 3 months, and reduction to private/E-1. On 18 November 1968, the court- martial convening authority approved the sentence and directed its execution. f. On 3 December 1968, a special court-martial convicted the applicant of wrongfully appearing at guard mount in the uniform of a specialist four (SP4)/E-4 and for stealing government property (i.e. food). The court sentenced him to 4 months' confinement and forfeiture of $48 per month for 4 months; the court-martial convening authority approved the sentence and ordered its execution on 5 December 1968. g. On 8 January 1969, the applicant's Fort Bragg commander advised him via memorandum of his intent to separate the applicant for unfitness under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). His reasons were the applicant's two NJPs and two court-martial convictions. On 9 January 1969, after consulting with counsel, the applicant acknowledged counsel advised him of the basis for the contemplated separation action; he waived his rights, and elected not to submit a statement in his own behalf. h. On 15 January 1969, a special court-martial convicted the applicant of being AWOL from the post stockade between 7 and 12 December 1968, and for escaping lawful confinement in the post stockade. The court sentenced the applicant to 6 months' confinement and forfeiture of $46 per month for 6 months; on 20 January 1969, the court-martial convening authority approved the sentence, but suspended its execution for 6 months. i. On 27 January 1969, the applicant's commander requested a psychiatric evaluation of the applicant. On 29 January 1969, a psychiatrist examined the applicant and diagnosed him with having a "paranoid personality – frequent outbursts." The psychiatrist recommended administrative separation under AR 635-212. j. On 8 February 1969, the applicant's commander recommended the separation authority discharge the applicant for unfitness; the commander indicated the applicant had been counseled by his leadership more than 20 times and, in effect, any further efforts at rehabilitation would be unproductive. The commander gave additional details, stating, in effect: (1) The applicant was initially assigned as a cook, but his work was unsatisfactory. The applicant then performed on-the-job training as a mechanic; during this period, he continually displayed hostility toward his leadership. He went AWOL twice, received NJP for both periods of AWOL, and was given a rehabilitative transfer to another unit on post; the unit sent the applicant back after 3 days due to his bad attitude and poor work quality. (2) On 14 November 1968, a court-martial convicted the applicant of using abusive language toward an NCO. On 18 November 1968, the command forwarded charges against the applicant for robbery and placed the applicant in confinement when he started intimidating witnesses. On 3 December 1968, a court-martial found the applicant guilty as charged and sentenced him to confinement, however, the applicant appealed the sentence in a personal interview with the brigade commander. On 7 December 1968, the applicant escaped confinement; he was apprehended on 12 December 1968 and returned to military control. (3) The commander contended the applicant had been given every possible opportunity to improve himself and all rehabilitative resources had been exhausted. The commander recommended an undesirable discharge under other than honorable conditions based on the applicant's frequent incidents of a discreditable nature and his established pattern of shirking. k. On 28 February 1969, the separation authority approved the commander's recommendation and directed the applicant's undesirable discharge under other than honorable conditions; on 11 March 1969, the applicant was discharged accordingly. His DD Form 214 shows he completed 6 months and 11 days of his 2-year enlistment contract, with 145 days of lost time (for both AWOL and periods of confinement). He was awarded or authorized the National Defense Service Medal. l. On 18 December 2019, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. After reviewing the applicant's service record, the ARBA psychologist validated that, at the time of his separation, the applicant had a behavioral health condition (paranoid personality). While the evidence indicated the applicant met medical retention standards, the Board could deem the applicant's diagnosis as mitigating for the applicant's periods of AWOL and his difficulty with authoritarian figures; however, his paranoid personality should not be considered as mitigating for wearing the rank/uniform of an SP4, or for stealing government property (food). m. On 24 December 2019, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf; the applicant did not respond. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant contends he was racially targeted and unfairly treated; as a result, he contends his discharge was unjust and warrants upgrade. He is seeking this upgraded character of service so that he can obtain health and other VA benefits. a. During the applicant's era of service, commanders could initiate separation action based on unfitness when Soldiers were involved in frequent acts of a discreditable nature and showed an established pattern of shirking. The separation regulation (AR 635-212) stated separation authorities were to issue Soldiers discharged for unfitness an undesirable discharge under other than honorable conditions; however, separation authorities could give honorable or under honorable conditions characters of service to Soldiers awarded a personal decoration, as well as any cases deemed appropriate by the separation authority, when based on the Soldier's particular circumstances. b. An ARBA psychologist affirmed that the applicant's service record showed a diagnosis of paranoid personality with frequent outbursts, and indicated the Board could consider this condition as mitigating for some of the applicant's misconduct: his periods of AWOL and difficulty with authority. (1) AR 635-212 additionally addressed the separation of Soldiers with character and behavior disorder (now termed personality disorders); such separations fell only under unsuitability (not unfitness) provisions, and stipulated the issuance of either an honorable or general under honorable conditions discharge. (2) In November 1972, AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212. In 1976, based on a civil law suit, the Army revised its policy on personality disorder separations; the Army subsequently required Soldiers separated for unsuitability due to a personality disorder to be retroactively issued honorable discharges; exempted were cases where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given (e.g. conviction by a general court-martial or by more than one special court-martial). Under the change in policy, Soldiers with personality disorders who were separated for unfitness were not eligible for the upgrade to honorable. c. The ABCMR is not empowered to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 3. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not required to serve the interest of equity and justice in this case. 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. 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. AR 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder or displayed a lack of appropriate interest (apathy). Soldiers involved in frequent acts of a discreditable nature were separated for unfitness under this regulation. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 4. Special Regulation 40-1025-2, in effect at the time, defined character and behavior disorders as those indicative of developmental defects or pathological trends in the personality structure, with minimal subjective anxiety, and little or no sense of distress. It stated further that, in most instances, the disorder was manifested by a lifelong pattern of action or behavior ("acting out") rather than by mental or emotional symptoms. The associated categories were: * pathological personality types – maladjustment of individuals as evidenced by lifelong abnormal behavior patterns * immaturity reactions – physically adult individuals who are unable to maintain their emotional equilibrium and independence when under minor or major stress * alcoholism – character disturbance due to alcohol abuse * addiction – includes cases where the use of drugs represent much deeper character disturbances where individuals engage in antisocial behavior, stealing, or sexual assault while under the influence of drugs * primary childhood behavior reactions – serious emotional difficulties within the child that are not due to organic defects where emotional displays are carried to an extreme degree 5. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972. It was revised on 1 December 1976 following settlement of a civil suit. a. The revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. In connection with these changes, a DA memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. c. A second DA memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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 to 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. 8. 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. 9. AR 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 states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017148 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20160017148 10 ABCMR Record of Proceedings (cont) AR20160017148 7