ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20160019356 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge and an appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Self-authored statement * Mental Health Progress * State of Illinois Affidavit * Certificate from Chaplain * Case Management Division * Paralegal from Prison * Circuit Court of Perry County * Prisoner Review Board * Affidavit * Advisory Opinion * Board Document 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 AR2002067372 on 7 December 2016. 2. The applicant states he was stationed at Fort Benning, Georgia and in June 1969 after arranging for a 3 day leave he departed the base on 6 June 1969 and arrived in Chicago, Illinois on the same date. He was robbed and severely beaten by several black Chicago gang bangers and awoke in a military building on Clark Street where he received medical treatment and he was released while suffering from amnesia. He wandered the streets of Chicago as a homeless person and he was arrested several times by the Chicago police department and should have been returned to military control, but the military failed to place a detainer against him and he was repeatedly released until he was convicted and sentenced for crimes. 3. The applicant provides: * Mental Health Progress notes, stating he experienced trauma when he was in the Army * State of Illinois Affidavit, describing his mental state during and after his military service * previous ABCMR case (AR2002067372), stating that there was no basis to recommend correction of the applicant’s record * a copy of the Case Management Division Exparte * an ABCMR Advisory Opinion * three self-authored statements * a copy of a certificate of office (Chaplain), showing he was an elected officer at the Veterans Post #02 * a copy of the Prisoner Review Board document, stating his request for parole was denied 4. A review of the applicant’s service record shows he enlisted in the Regular Army on 16 October 1967. 5. The applicant accepted nonjudicial punishment NJP) under Article 15 of the Uniformed Code of Military Justice (UCMJ) during his period of service, for being absent without leave (AWOL) from 29 January to 5 February 1968. His punishment consisted of forfeiture of $21.00 pay per month for 1 month and 14 days restriction. 6. He again accepted NJP on 12 December 1968 for violating a lawful order, in that he missed bed check and failing to go to his prescribed place of duty. His punishment consisted of forfeiture of $25.00 pay per month for 1 month, 14 days extra duty, and 14 days restriction. 7. On 1 February 1969, he was punished for failing to go to his place of duty by being reduced from E-4 to E-3. Finally, he accepted NJP on 7 February 1969 for failing to go to his place of duty. As punishment, he forfeited $15.00 pay per month for 1month, extra duty for 7 days, and restriction for 14 days. 8. On 6 June 1969, just 2 days after reporting for duty at Fort Benning, GA he was reported as AWOL by his unit and a letter was sent to his mother advising her of the situation and asking her to tell the applicant to return to military control. 9. On 8 July 1969, he was dropped from rolls as a deserter and on 18 July 1969, DD Form 553, Absentee Wanted by the Armed Forces, was filed by the US Army Deserter Information Point (USADIP), Fort Benjamin Harrison, Indiana, with the Chicago Police Department, Cook County Sheriff’s Office, and the Federal Bureau of Investigation (FBI) among other organizations. 10. The Applicant record is silent concerning his whereabouts until 26 August 1971 when civil authorities notified the Army that he was in their custody, as of 25 March 1971, on a charge of murder. 11. On 15 November 1971, the applicant was convicted along with his brother and another individual for murdering a man on 21 March 1971. He was sentenced to not less than 100 years or more than 150 years in prison. 12. The FBI report of criminal activity by the applicant shows while he was in the Chicago area on leave, en-route from Korea to Fort Benning, GA, he was arrested for attempted robbery on 23 April 1969. He was arrested for resisting arrest in Chicago on 27 October 1969. He was again arrested in Chicago for aggravated assault on 27 November 1969 and on 23 December 1969 and for murder committed on 21 March 1971. 13. On 24 April 1972, the applicant's immediate commander recommended separation action against the applicant under the provisions of Army Regulation (AR) 635-206 (Personnel Separations Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), Section VII, paragraph 45b, for unauthorized absence in excess of one year. 14. On 24 April 1972, the applicant was afforded the opportunity to consult with appointed counsel, or military counsel of his own choice, or civilian counsel at this own expense. He declined the opportunity to consult with counsel. He submitted a statement in his own behalf. He acknowledged he: * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood that he may, up until the date the discharge authority orders, directs or approves his discharge, withdraw his waiver and request that a board of officers hear his case 15. On 7 July 1972, the separation authority approved the applicant's discharge for unfitness, under the provisions of AR 635-206, Section VII, para 45b, with his service characterized as undesirable. The applicant was discharged accordingly on 19 July 1972. 16. His DD Form 214 shows he was discharged under the provisions of AR 635-206, Section VII, para 45b, for unauthorized absence in excess of one year, and he was issued Separation Program Number (SPN) 284. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 1 year, 8 months and 5 days of active service, and he had 1125 days of lost time. He was awarded or authorized the National Defense Service Medal, Marksmanship Badge with Rifle Bar (M-14), and the Armed Forces Expeditionary Medal (Korea). 17. The Army Review Board Agency obtained a medical advisory, which states: a. On 7 December 2016, Mr. Horton reapplied to the ABCMR requesting his discharge characterization be changed from Under Other than Honorable conditions to Honorable conditions. He contends "newly discovered evidence of 'PTSD' memory loss resulting from military mission of assisting communist captured P.O.W. return to freedom, explain(s) reason for loss of identity, change of behavior, Other than Honorable discharge from Army, and extensive disciplinary and criminal histories, all of which was inequitable and improper." Mr. Horton noted his military and prison medical records do not contain "medical exams or treatment for painful gunshot wound to side, 3 stab (sic) wounds to head, and ('PTSD') symptoms; 'PTSD' exam and treatment started in 2014, after 47 years of pain and suffering." b. 12. The Army Review Boards Agency Clinical Psychologist was additionally asked to determine if there is a nexus between Mr. Horton's reported behavioral health difficulties and the misconduct resulting in his discharge. This opinion is based on the information provided by the Board and the Joint Legacy Viewer (JLV}, as the DOD electronic medical record (AHL TA) did not exist during his time in service. Based on a thorough review of available records, Mr. Horton is not diagnosed with PTSD or TBI; the submitted DOC mental health note has PTSD as a consideration, but did not diagnose it. Irrespective, PTSD would not mitigate the basis for separation; a civil conviction of murder. 18. The regulation in effect at the time (AR 635-206) provides for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. 19. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 20. 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: 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 necessary to serve the interest of equity and justice in this case. After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the multiple offenses of a serious, criminal nature, as well as the medical advisory’s finding that there was no nexus between a medical condition and the misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR2002067372 on 7 December 2016. 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. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. An undesirable discharge was normally considered appropriate. 3. 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 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019356 5 1