ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20160017460 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Army Board For Correction of Military Records (ARBA) letter * Department of Veterans Affairs (VA) medical records in excess of 100 pages 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: a. He should not have been given a general discharge. The Army did this to him and made him do what he did. He was a Soldier that had a disability at the time he was discharged from the Army and he never had an exit interview from the Army because he was confined in jail. b. He committed manslaughter against his wife while in the Army and was sent to prison, where he was incarcerated for 6 years and 6 months. He was released from prison in March 1985 and still never got counseling or any treatment for his illness. c. He enrolled in college in August 1985 and graduated in May 1987. He couldn’t keep a job because he kept getting fired. He is working now, trying to make a difference in his life and the life of his family. He now has a wife and four children and they regularly attend church. He is taking his medications and can see a difference in his life now that he is receiving treatment from the VA. All his is asking is to upgrade his discharge to honorable. 3. The applicant enlisted in the Regular Army on 18 January 1977. 4. Headquarters, 7th Infantry Division and Fort Ord Special Court-Martial Order Number 11, darted 13 February 1978, shows he was arraigned and tried by special court-martial at Fort Ord, CA, where he was charged with and found guilty of the following: * committing an assault upon Specialist A____ P____ by cutting him on the lip and hand with scissors on or about 25 October 1977 * without authority, failing to go at the time prescribed to his appointed place of duty on or about 0715, 4 November 1977 * without authority, failing to go at the time prescribed to his place of duty on or about 1245, 4 November 1977 * failing to obey a lawful order from Sergeant First Class O____ F____, on or about 0900, 4 November 1977 5. On 20 January 1978, he was sentenced to reduction in rank/grade to private/E-1, confinement at hard labor for 1 month, and forfeiture of $50.00 per month for 1 month. 6. Multiple DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), show he accepted nonjudicial punishment under Article 15 of the UCMJ on the following occasions for the following infractions: * 8 March 1977, for absenting himself from his unit without authority on 24 February 1978 and remaining so absent until on or about 27 February 1978 * 18 July 1978, for absenting himself without authority from his unit on or about 4 July 1978 until on or about 6 July 1978 7. On 26 February 1979, his felony charge of murder was reduced via plea to felony voluntary manslaughter by the Liberty Superior Court, Atlantic Judicial Circuit of Georgia and he was sentenced to confinement at labor for a term of 20 years. 8. An undated Recommendation for Elimination Under the Provisions of Chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Misconduct shows the following: * the reason for the discharge recommendation was the applicant’s civil conviction of manslaughter which resulted in a 20-year prison term * his past record revealed several accounts of aggression against the wife as well as fellow Solders * his conduct and attitude were unbecoming of a Soldier in the U.S. Army * his conduct and efficiency ratings were unsatisfactory * after consulting with counsel, the applicant elected to present his case before an administrative discharge board, be represented by counsel, and not to submit a statement in his own behalf 9. A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 March 1979 shows the applicant: * was fully oriented, of level mood, had clear thinking process and normal thought content with fair memory * had no significant mental illness, was mentally responsible, was able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) * did not manifest psychopathology which would warrant disposition through medical channels * was cleared for administrative action as deemed appropriate by his command 10. On 11 May 1979, he was notified to appear before a Board of Officers on 12 June 1979, to determine whether he should be eliminated from the service by reason of his misconduct and civil court conviction, in accordance with Army Regulation 635-200, chapter 14. a. The Board of Officers ultimately convened on 6 September 1979, at Fort Stewart, GA, and the applicant was represented by military counsel. A Summary of Proceedings, dated 6 September 1979 shows the Board determined: * the applicant was undesirable for further retention in the service by reason of his misconduct * his rehabilitation was not deemed practical b. In view of the findings, the Board recommended the applicant’s discharge from the service by reason of his misconduct with the issuance of a General Discharge Certificate. 11. On 2 October 1979, the approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, due to conviction by civil court. He directed the issuance of a General Discharge Certificate. 12. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged accordingly due to misconduct – conviction by civil court. He completed 1 year, 6 months, and 28 days of net active service, with the following periods of lost time: 16 October 1977 – 28 October 1977; 21 January 1978 – 12 February 1978; 24 February 1978 – 26 February 1978; 4 July 1978 – 5 July 1978; and 17 September 1978 – 10 October 1979. His service was characterized as general, under honorable conditions. 13. The applicant provided numerous VA medical documents which show, among other things, his problem list includes depressive disorder, chronic post-traumatic stress disorder (PTSD) and depression as well as treatment for those conditions. 14. On 4 April 2019, the ARBA medical advisor provided an advisory opinion, wherein he stated while the applicant’s current conduct is commendable, it is not clear how he relates his military training and experience to killing his wife, as he claims in VA therapy records. There is nothing in his military or medical records which indicate that he experienced any trauma while he was on active duty. There is no evidence of a condition or experience which would mitigate his misconduct or indicate he had PTSD or any other disability during his time of service. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 12 April 2019 and given an opportunity to submit comments, but he did not respond. 16. 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. 17. 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. 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. 18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documentation, his post-service accomplishments, evidence in the records, the advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the serious nature of the misconduct that led to the applicant’s separation and the conclusion of the advisory opinion that there is no evidence of a condition that would mitigate his misconduct. The Board considered current guidance and determined that the evidence does not support a change to his character of service at separation. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, 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. 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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. 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. c. 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. ABCMR Record of Proceedings (cont) AR20160017460 7 1