IN THE CASE OF:  

		BOARD DATE:  27 March 2020

		DOCKET NUMBER:  AR20160018066


APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his 
bad conduct discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Personal Statement
*	Dental Records, X-rays and dental notes
*	Narrative summary related to dental accident
*	Bad conduct Discharge Orders

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) in Docket Number AC94-05664, on 17 May 1995.

2.  The applicant states: 

	a.  Soon after joining the Army, within 8 months of active duty, he was involved in a 
serious tank accident that he believes had major role on his character at the time of 
these incidents.  He was driving at night, with no lights, in a tank driving at 30 miles an 
hour, when his tank came to a sudden stop and drop.  He "BIT THE HATCH."  He was 
hospitalized for about a week.  It left him with eleven loose teeth and lost two front teeth. 
Soon after, he was reassigned to Germany.  During that time, he was not ever fully 
evaluated for head trauma.  He still had not recovered from the accident.

	b.  After being in Germany for a month, he received an Article 15 for defending 
himself in a fight.  During that time, noncommissioned officers would fight amongst each 
other, which was a norm in his unit in the mid-1980s.  At that time, it was a bad era.  
Their senior leadership was poor and most of them had PTSD (post-traumatic stress 
disorder) due to the Vietnam era.  During this time in his unit, the military was trying to 
establish Equal Opportunity (EO) to get different ethnic groups to come together as a 
unit.  
	c.  In February 1989, he had a hernia operation and was on pain medications and a 
few days later, he was involved in an incident with another Soldier (Private First Class 
(PFC) B__).  The incident occurred on 22 February 1988 when he struck PFC B__ with 
a beer bottle because he felt that his life was being threatened.  There were three 
Soldiers, one of which was PFC B__, and they were all intoxicated while he was sober.  
He did not want to fight them due to his surgery.  He had to defend himself because of 
his stitches above his private part.  He feels sorry, but they were the aggressors and he 
felt intimidated by them.  It was proven that they were intoxicated at the time of the 
incident and he had nothing to drink.

	d.  He was supposed to separate from the U.S. Army in less than a month, around 3 
April 1988.  On 15 March 1988, he supposedly exposed his penis to somebody on the 
German economy.  The court had lack of evidence to prove that it was he.  He literally 
had to show the judge and the lawyers his privates, because they wanted to know if he 
was circumcised.  That evidence did not work for them.  He also had to take a lie 
detector test at the time.  He did not pass because he was nervous and the lie detector 
was inconclusive.  They based their opinion on that, which surely at that time, was 
inadmissible in court.  

	e.  He is asking the Board to please look at the dates of each incident, and 
determine if they are right about each judgment.  During the mid-1980s in his unit, there 
was no systems in place to handle any Equal Opportunity cases.  He has tried looking 
online for military friends that can help verify his character, but unable to locate them, 
since it has been so long.  He thinks that he has paid the price long enough for what 
happened during that time, considering that the crime was not serious.  He asks the 
Board to upgrade his discharge and to consider my request.  He is still proud to have 
served this country for 4 years. 

3.  The applicant provides:

	a.  Narrative Summary, dated 6 January 1986, and allied documents (records of 
medical care, X-rays, etc.) related to an incident when he was involved in a training 
accident striking his face on the inside of a tank hatch rim and avulsing teeth #8 and #9.  
Additionally, he received extensive trauma to his lips and lower anterior teeth as well.  
Teeth #8 and #9 were re-implanted, mandibular alveolar fracture was reduced, and 
maxillary and mandibular arch bars were placed for stabilization.  Additionally through 
and through lacerations of upper and lower lips were debrided, cleansed, and closed 
primarily.  The patient reported no loss of consciousness secondary to accident.  He 
remained in the hospital until 6 January 1986 at which time he was returned to duty with 
a temporary profile.  Following his treatment, he returned to duty wand instructed to 
complete a routine follow up.  

	b.  Statement from a doctor who states on 28 October 2009, the applicant presented 
with missing teeth #'s 4, 8, 9, and 10.  His chief concerns reported were swelling and 
tenderness on the lower anterior teeth as well as an ill-fitting upper partial denture.  The 
partial denture was bulky and lacks retention.  Radiographs revealed a large 
radiolucency centered at the apex of #24 extending toward adjacent teeth #23 and 25. 
Teeth #24 and #25 had class II mobility.  He was referred to another doctor to evaluate 
and treat as needed.  Also found were teeth #'s 1, 2, 3, 11, 14, 18, 19, 30, and 31 all 
had broken fillings, fractures and re-decay.  #1, 2, 11, 18, 19, 30, and 31 were restored 
with bonded fillings and #3, 14 with crowns.

	c.  Medical operational report, dated 19 February 1988, indicating the applicant 
underwent right inguinal herniorrhaphy.  This medical procedure was performed at the 
Army hospital in Germany to repair a hernia.  He was returned to duty after 14 days of 
convalescent leave.

4.  Review of the applicant's service records shows: 

	a.  He enlisted in the Regular Army 4 April 1985.  He served in Germany from 
December 1986 to May 1988.  

	b.  On 14 March 1986, he accepted nonjudicial punishment under Article 15 for 
assaulting PFC J__ =. 

	c.  On 26 May 1988, he was convicted by a special court-martial of one specification 
of attempting to maim PFC B__ but cutting his ear with a broke beer bottle.  The court 
found him guilty and sentenced him to reduction to the lowest enlisted grade of E-1, 
forfeiture of $447.00 pay per month for 4 months, confinement for 4 months, and a bad 
conduct discharge.  

	d.  On 30 June 1988, the convening authority approved the sentence, and except for 
the bad conduct discharge, ordered the sentence executed.  The record of trial was 
forwarded to The Judge Advocate General of the Army for appellate review.

	e.  The U.S. Army Military Court of Review affirmed the findings of guilty and the 
sentence.   

	f.  Special Court-Martial Order Number 30, issued by Headquarters, U.S. Army 
Correctional Activity, Fort Riley, KS on 15 February 1989 shows that after completion of 
all required post-trial and appellate reviews, the convening authority ordered the 
applicant's bad conduct discharge duly executed.

	g.  The applicant was discharged on 28 February 1989.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was discharged in the 
rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army 
Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with 
a bad conduct discharge.  He completed 3 years, 7 months, and 17 days of creditable 
active military service during this period with lost time from 26 May to 31 August 1989.  
His DD Form 214 also shows he was awarded or authorized the: 

*	Army Service Ribbon
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar
*	2nd Class Marksmanship Qualification Badge with Grenade Bar 

	h.  On 7 October 1991, the Army Discharge Review Board denied his petition for an 
upgrade of his discharge. 

	i.  On 17 May 1995, the Board considered his case for an upgrade of his bad 
conduct discharge to general; however, the Board determined that there was no basis 
to grant him an upgrade. 

5.  The ARBA medical advisor reviewed the Case file, AHLTA and JLV. The applicant 
Tyrone Prewitt, requests a discharge upgrade from Bad Conduct to Honorable. He 
contends his in-service training injury impacted his character and contributed to his 
misconduct. He says he was not adequately evaluated for head trauma. The applicant 
sustained extensive facial trauma to include loss of 2 front teeth, lacerations of both lips; 
and fracture of lower jaw while driving a tank in Jan 1986. While there was no loss of 
consciousness, and head, neck and neurologic examinations were normal; medical 
literature indicates there is a strong association between facial trauma and traumatic 
brain injury. The applicant assaulted another Soldier with a broken beer bottle on 
23Feb88, while in sutures and on pain medication, still recovering from the inguinal 
hernia repair he had on 19Feb88. He was also charged with “willfully and wrongfully” 
exposing himself in public on 15Mar88. The 2 incidents occurred a little more than 1 
year after the facial trauma incident and there was no record of offenses prior. It is 
known that impulsive behavior and/or impairment in judgement can result from TBI. 
With consideration of the 3 Sep 2014 Secretary of Defense Liberal Guidance 
Memorandum, the applicant’s military medical records reasonably support the probable 
existence of a TBI condition at the time of discharge. Based on the available information 
for review, the applicant DID meet medical retention standards IAW AR 40-501. While 
the offense of causing injury to a fellow Soldier is NOT mitigated--the impulsivity and 
lack of judgment demonstrated by the offense of willfully and wrongfully exposing 
himself in public which in part led to his discharge from the military, is mitigated by the 
TBI condition.


6.  By regulation (AR 635-200), a Soldier will be given a bad conduct discharge 
pursuant only to an approved sentence of a general or special court-martial.  The 
appellate review must be completed and the affirmed sentence ordered duly executed.

7.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records 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, the court-martial outcome and the 
reason for his separation.  The Board considered the review and conclusions of the 
Medical Advising official regarding his conditions and the applicant’s misconduct.  The 
Board found insufficient evidence of in-service mitigation to overcome the misconduct 
and the applicant provided no evidence of post-service achievements or letters of 
reference in support of a clemency determination.  Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.

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

:XXX	:XXX	:XXX	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.  Army Regulation 635-200 (Personnel Separations) provides 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 honorable discharge.  

	c.  Paragraph 3-7c states a discharge under other than honorable conditions is an 
administrative separation from the service under conditions other than honorable.  It 
may be issued for misconduct, fraudulent entry, security reasons, or for the good of 
service in selected circumstances.

	d.  Paragraph 3-11 states a member will be given a bad conduct discharge pursuant 
only to an approved sentence of a general or special court-martial.  The appellate 
review must be completed and the affirmed sentence ordered duly executed. 

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 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. 

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 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 based on 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20160018066


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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