IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20160019835 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable condition discharge to a fully honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement to the Board * Personal email * Department of Veterans Affairs (DVA) Certificate of Service * Statements of Support (x3) * Medication List (x8) * Consult Requests (x10) * Progress Notes (x166), dated between 2016 and 2019 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 letter written to the Board that he humbly requests a DD Form 215 (Correction to DD Form 214) that will reflect he received an honorable discharge from the VA Regional Office located at the John F. Kennedy Federal Building Boston, MA 02203; 3. In an email written to the Board, the applicant states, he is a 57-year-old native Bostonian chronically homeless veteran. He has been appealing to the U.S. DVA and the U.S. Army Review Boards for approximately 26 years for “HUDVASH” benefits, drug and alcohol treatment, and monthly financial benefits to sustain himself. He has enclosed his life story for assistance, because he has exhausted all remedies. He has applied for an upgrade of his discharge without success for the past 10 years. Most recently he received a Rapid Appeals Modernization Program (RAMP) notice from the VA and realized that he was unaware of its mechanics and procedures. Many times he has been a resident at the New England Shelter for Homeless Veterans. Currently, he is not welcome there due to chronic addiction to street drugs. He is currently involved in mental health treatment at the Causeway Mental Health Clinic and has been for many years. 4. He also provides three statements of support: a. Mr. M states he is a 50 year old professional contractor and businessman and he has known the applicant approximately 28 years, which is since his release from military service. The applicant has not committed any serious felony(s) since his release. He finds him to be of good moral reputation and to have PTSD and a host of other mental Illnesses, due in part to his military service and traumatic childhood. He is a mentor to the applicant, and provides financial, and emotional support to him. The applicant has an inability to maintain gainful employment, housing and stability. Therefore, he assists by any means necessary to sustain his life. He believe the applicant is deserving of any assistance that may be provided to him by the government. b. Mr. H states he is now retired, but he was a Boston Massachusetts Fire Fighter/Boston Arson Fire Investigator for 36 years. The applicant is his cousin, and he has known him all of his life. The applicant had a traumatic childhood and he hoped the military would have been a positive change in his life. He feels the applicant has paid his debt to society for the crimes he committed during his military service. He also believes the applicant should not be further penalized by the denial of governmental benefits that could aid and assist his quality of life. Any assistance that could be provided to him would be beneficial to all parties concerned. c. Ms. H states she is a retired Massachusetts State Trooper and she also worked 20 years at the Department Of Motor Vehicles (DMV). She has known the applicant all of her life. She is aware that both prior to and after his military service he suffered from severe mental illness. Since his release from incarceration back into society he needs help, and she believes he can be rehabilitated, if provided the necessary governmental assistance. 5. On 2 October 1979, the applicant enlisted in the Regular Army for 3 years. He was awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman) and was assigned to Fort Hood, TX, with duties in his MOS. 6. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on: a. 31 March 1980, for violating a general regulation by having in his possession a knife with a blade greater than 3 1/2 inches in length and disorderly conduct. His punishment consisted of a forfeiture of pay and 30 days of confinement at the Correctional Control Facility (CCF) (both suspended for 2 months). b. 22 December 1980, for being absent from his place of duty on 12 December 1980. His punishment consisted of reduction from pay grade E-2 to E-1, a forfeiture of pay, and 7 days of extra duty and restriction. 7. A Bar to Reenlistment Certificate, dated 27 March 1981, was imposed against the applicant for the above misconduct. This document also shows, on 19 March 1981, he pled guilty to armed robbery, two counts of breaking and entering, and illegal use of automatic weapons. He·was also pending charges for theft of Government Property (2- M16A1 Rifles, and 3- M1911A1 Pistols). He was in civilian confinement in and there is no evidence that he reviewed the bar. 8. He was convicted of armed robbery and assault and was sentenced to serve 6 years in civil confinement. At the time he was confined at the Rehabilitation Center. There is no evidence that he appealed his sentence. A criminal Information sheets according to Rules of Court he had 60 days from the date of judgement to appeal his sentence. 9. An undated, letter, shows The Staff Judge Advocates Office, notified the applicant he had been appointed to act as consulting counsel to advise him of his rights in conjunction with his discharge under Army Regulation (AR) 635-200 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)) for civil conviction. 10. The applicant’s chain of command recommended elimination due to civil conviction. He was not under military control; therefore, no physical nor mental examination were available. 11. A 5th Indorsement, dated 24 March 1982, shows the 1st Cavalry Division Staff Judge Advocates office indicated the applicant was transferred from the Correctional Center, , prior to receiving the letter of notification concerning his chapter 14 discharge action. a. Since he had not been notified of his pending chapter 14 action, steps must be taken in accordance with paragraph 1-18, Chapter 1, AR 635-200 to notify him by certified mail. b. Upon receipt of a return receipt signed by the applicant or his authorized agent, and the passage of 30 days from the date thereon, forward the case to the appropriate headquarters for further disposition. 12. Indorsement 6, dated 30 April 1982, shows a certified copy of the chapter 14 action was sent to the applicant on 29 March 1982. A return receipt was received on 1 April 1982. As of 30 April 1982, no further mail had been received from the applicant. 13. On 14 May 1982, the separation authority approved the discharge action and ordered the applicant discharged under the provisions of chapter 14, AR 635-200 for misconduct, due to conviction by civil court, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate. 14. Accordingly, on 28 May 1982, he was discharged under the provisions of AR 635-200. He completed 1 year, 5 months, and 2 days of active service and he had 119 days of lost time. He also has lost time from 3 March 1981 through 28 May 1982. His awards are listed as the Expert Marksmanship Qualification Badge, Hand Grenade and the Marksman Marksmanship Qualification Badge, Rifle. 15. Chapter 14, AR 635-200, in effect at the time, shows discharges due to civil convictions were listed under section III. Commanders were to consider discharging a Soldier when civil authorities initially convicted that Soldier for an offense that, under the UCMJ, carried a maximum penalty of death or confinement for 1 year or more. An under other than honorable conditions discharge was normally appropriate, but an honorable or general under honorable conditions character of service could be authorized if merited by the Soldier's overall record. 16. The applicant provided: a. A list of medication and medical records from the VA Medical Center (VAMC), Dorchester, MA, that shows he was being treated for attention-deficit/hyperactivity disorder, depression and anxiety, thought disorder, and mood disorder back as early as 2009. b. Consults Requests show he was undergoing substance abuse outpatient treatment in September 2016. He was also diagnosed with schizoaffective disorder, post-traumatic stress disorder (PTSD), and antisocial personality disorder. c. Progress Notes showing he was seen on various occasions for medication management and individual psychotherapy. On 8 February 2019, he declined to give urine and blood samples, because he did not want to give a sample until he was clean. Progress notes describe a long history of mental health related issues. On 30 November 2018, he was not interested in attending group or individual therapy. Even though he missed lots of appointments he appears to have made regular appointments between 2018 and 2019. He had a call back number, when he missed appointments the VAMC, would call him and help him reschedule. d. According to the available progress notes he receives drug treatment and mental health treatment from both VA providers and non-VA providers. 17. The ARBA Clinical Psychologist was asked to determine if the available records reasonably support a behavioral health condition at the time of service and, if so, mitigated the misconduct that resulted in the applicant’s discharge. A review of the electronic VA medical record indicates he has been treated for several medical conditions to include ADHD, cannabis use disorder, cocaine abuse, schizoaffective disorder, and antisocial personality disorder. In the provider note on 17 June 2004, the applicant reports he was treated starting around age 10 at the Norfolk County Adolescent Treatment Clinic in Quincy, MA, for approximately 2 years. He reported not having behavioral health treatment again until 1995. He was diagnosed with schizoaffective disorder, on 26 January 2009. He does not have a service connected disability rating. At this time, there is insufficient documentation to support the applicant had mental illness while in-service preventing him from making a conscious decision with awareness of the potential consequences of his actions. The basis for separation is not mitigated. In addition, his current diagnoses would not be considered mitigating factors for armed robbery and assault. 19. On 5 January 2019, ARBA provided the applicant a copy of the advisory and gave him the opportunity to submit a statement or additional evidence on his behalf. He did not respond. 20. Records show he completed 1 year, 5 months, and 2 days of his 3-year service obligation. He also has lost time from 3 March 1981 through 28 May 1982, due to being in civil confinement. 21. He provided a VA Certificate showing the VA considers his service as honorable for VA purposes. He requests that he be provided a DD Form 215 to reflect this honorable service. In reaching its determination, the Board can consider the applicant's petition, his service record, the advisory opinion, his VA Certificate, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 noted the psychologist determination that based on available medical records, there is insufficient documentation that the applicant had mental illness while in the service preventing him from making a conscious decision with awareness of the potential consequences of his actions. 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 Under Other Than Honorable Conditions 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 due to a civil conviction for armed robbery and assault, his Under Other Than Honorable Conditions character of service, or any basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. The version of chapter 14, AR 635-200 in effect in May 1980 showed discharges due to civil convictions were listed under section III. Commanders were to consider discharging a Soldier when civil authorities initially convicted that Soldier for an offense that, under the UCMJ, carried a maximum penalty of death or confinement for 1 year or more. (Premeditated murder and conspiracy commit premeditated murder both carried a mandatory punishment of life in prison). (1) The commander was to consider the Soldier convicted even though an appeal was pending; commanders were to hold the execution of the discharge in abeyance until the completion of final appellate action. (2) An under other than honorable conditions discharge was normally appropriate, but an honorable or general under honorable conditions character of service could be authorized if merited by the Soldier's overall record. (3) When requested by the Soldier, his/her case could be heard by a board of officers. b. Effective 1 October 1982, the Army issued a revised AR 635-200. Discharges for civil conviction were moved to section II; criteria remained the same, except the offense for which the Soldier was convicted had to include a punitive discharge under the UCMJ, or confinement for 6 or more months. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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. a. His 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. b. 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) AR20160019835 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20160019835 8 ABCMR Record of Proceedings (cont) AR20160019835 7