ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20170011426 APPLICANT REQUESTS: * An upgrade of his under other than honorable conditions discharge to general or honorable * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney letter, dated 2 May 2017 * Tab A Declaration of applicant, dated 27 April 2017 * Tab B Excerpt from article on presumptions of justice: law, politics, and the mentally retarded parent, dated April 1990 * Tab C School records from the Charlotte-Mecklenburg Schools * Tab D Service record and claim file excerpts * Tab E Project 100,000 documents * Tab F Historical excerpts of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * Tab G Current excerpts of AR 635-200 * Tab H Army Careers and Jobs Commissioned Officer Candidate (09S) 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 he did everything the Army asked of him the best that he could. He was struggling in school and thought it would be a way to make his life better and be a hero. He couldn’t really read when he joined the Army. He could read some words, but got confused. He went absent without leave (AWOL) from the Army because his mom who adopted him was sick. He wanted to take care of her. He had trouble focusing when he was in the Army. He was having a lot of mental issues. He was 1. doing the best he could. He was good at sports and good at shooting, but the reading and writing was hard for him. He felt like if the Army wanted him to do something then he would see it backwards. He would have to ask things three or four times to understand what he needed to do. The focus was hard. It was like there were too many things going on. All of the sergeants used to call him half a man when he was in service. They would do it in front of others and kept making him do extra pushups and things like that. He was 17 years old and looked like he was 14 years old. Everybody treated him differently because of his young looks. That really damaged him. When the sergeants asked him to shave one time, he had puss bumps and blood all over his face and no hair. He just had peach fuzz. The sergeants wanted to treat him harder than everyone else. They wanted to make an example out of him. They did him dirty. a. His lawyer states in essence, the applicant’s discharge should be changed to an honorable discharge or alternatively a general discharge and his narrative reason for separation should be changed to secretarial discretion. He provides background into the childhood and educational challenges. He describes the applicant’s maltreatment and challenges in the military leading to his AWOL and eventually his discharge. He states the applicant’s discharge is unjust and in error based on his intellectual limitations. The basis for the applicant’s discharge was unfitness, not misconduct. The applicant’s left the military without authority in order to go take care of his ailing mother and her financial problems. He states that AR 635-200, at that time required a period of AWOL lasting a year or longer for the misconduct to justify discharge. His client was not eligible for discharge based on his periods of AWOL. b. Additionally, the severity of this punishment indicates that the erroneous perception of the applicant’s abilities affected his treatment. Such mistreatment is indicated elsewhere in his records. For example, on 19 December 1974, the applicant was given an Article 15 for being gone for two hours and failure to obey an order. His record indicates that the applicant was told to go shave at 0830 and returned at 1030 without having shaved. For this issue, he was fined and reduced by a pay grade. His records indicate that he was not shaving based on a skin condition that is consistently referenced in his medical records and not disrespect. If he were to be discharged then he should have been discharged for unsuitability. His family problem also would have allowed for a hardship discharge. 3. The applicant provides: a. A self-authored declaration mentioned above. b. Excerpt from article on presumptions of justice: law, politics, and the mentally retarded parent, dated April 1990. In which mental retardation is discussed as well as effects of said mental retardation. a. c. School records from the Charlotte-Mecklenburg Schools that shows education records through grade 10 and educational mental retardation (EMR) as a special handicap. d. Service record and claim file excerpts which shows scores on aptitude tests. Records of dermatology clinic for skin/shaving irritation as well as other records of military service. e. Project 100,000 documents from the Office of the Secretary of Defense showing the relationship between Armed Forces Qualification Test (AFQT) and Intelligence Quotient (IQ)-Inclusion for Armed Services Vocational Aptitude Battery backup book. Answering the question of do we have a correlation between IQ and AFQT as yes. The correlation between AFQT and an individually administered intelligence test (The Wechsler Adult Intelligence Scale) is about 80%. The correlation is high enough to indicate that the two tests have very much in common. Comparison of school records which the applicant was not able to complete special education classes to these intelligence scales. f. Historical excerpts of AR 635-200, in which the applicant’s attorney highlights at the time of his client's discharge, AR 635-200 stated that a Soldier's aptitude should be considered in issuing his character of discharge and notes the importance of whether a service member has performed "to the best of his ability." (See AR 635-200 at 1-9(d) (Historical Excerpts, attached as Tab F)). Thus, a proper understanding of a Soldier's aptitude is critical to a proper character of discharge. (See Tab F at 1-7 (stating that "it is essential that all pertinent factors be considered so that the type of separation will accurately reflect the nature of the services rendered". g. Current excerpts of AR 635-200, in which paragraph 3-5d states due consideration will be given to the Soldier's age, length of service, grade, aptitude, physical and mental conditions, and the standards of acceptable conduct and performance of duty" when characterizing service. h. Army Careers and Jobs Commissioned Officer Candidate (09S), for comparison's sake, an AFQT score of 13 correlates to an IQ in the 1970's (Tab E) and is consistent with EMR status (Tab B.). A general technical score of 114 would have qualified the applicant to be a commissioned officer candidate. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 30 January 1973. b. He accepted non-judicial punishment (NJP) on/for: * 18 July 1973, being AWOL from 6 June 1973 until 24 June 1973 * * 20 February 1974, being AWOL from 7 December 1973 to 20 December 1973 and 19 January 1974 to 6 February 1974, his punishment included reduction to private/E-1 * 2 October 1974, absenting himself from appointed place of duty and failing to obey order or regulation * 13 December 1974, absenting himself from appointed place of duty and failing to obey order or regulation, his punishment included reduction to private/E-1 c. On 30 April 1975 he was convicted by a special court-martial of: * Charge I, one specification of without authority absent himself from his unit from 16 February 1975 to 19 February 1975 * Charge II, one specification of behaving himself with disrespect toward his superior commissioned officer, by refusing to answer questions directed to him * Charge III, one specification on or about 10 March 1975, escaping from the lawful custody of Sergeant X d. The court sentenced him to confinement at hard labor for 2 months, and forfeiture of $100 per month for 2 months. e. Special Court-Martial Order number 34, dated 15 May 1975, approved and ordered the sentence duly executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. The appellate rendered a decision that states that the sentence is approved and will be duly executed. The accused will be confined in the installation detention facility, Fort Bragg, NC, and the confinement will be served therein or elsewhere as competent authority may direct. f. On 4 June 1975, the applicant's immediate commander recommend he be discharged from the service as unfit because of frequent incidents of a discreditable nature (1 court-martial and 1 article 15) under the provisions (UP) of paragraph 13-5 (Separation for Unfitness or Unsuitability) (Applicability) AR 635-200. g. The applicant was advised by counsel of the basis for the contemplated action to separate him under chapter 13 and acknowledged the following: * the basis for the contemplated action to accomplish his separation for unfitness under chapter 13, AR 635-200 * he waived consideration of his case by a board of officers and personal appearance before a board of officers * statements in his own behalf are not submitted * he waived representation by any counsel * * he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him * he understood that he may, up until the date the discharge authority directs or approves his discharge, withdraw this waiver and request that a board of officers hear his case h. On 5 June 1975, his intermediate commander concurred with the recommendation to discharge him under chapter 13. i. On 6 June 1975, the separation authority approved the discharge under the provisions of chapter 13, AR 635-200 and directed an Undesirable Discharge Certificate be furnished. j. On 9 June 1975, the applicant was discharged accordingly. His DD Form 214 show she was discharged under the provisions of paragraph 13-5b of AR 635-200 with an under other tan honorable conditions characterization of service. He completed 2 years and 16 days of active service and he had 114 days of lost time. He was awarded the National Defense Service Medal. 5. On 16 September 1982, The Army Discharge Review Board determined the applicant was properly discharged. The request for a change in the type and nature of his discharge was denied. 6. By regulation, 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. 7. By regulation, enlisted Soldiers could be eliminated for unfitness or unsuitability. A Soldier could be separated for unsuitability whose record shows apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. 8. 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 reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. Based upon the applicant’s level of education prior to his enlistment and scores on aptitude tests, the concluded there was mitigating factors contributing to some of the misconduct resulting in his discharge. Project 100,000 applied 1966 through 1971, before his period of service, so the Board did not consider that information. However, the Board considered he did not complete high school, and hisGT score was considerably low. The Board agreed to grant a general, under honorable conditions discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 9 June 1975 showing his characterization of service as honorable. 6/21/2019 X CHAIRPERSON Signed by: 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 3. Army Regulation (AR) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets for the basic authority for separations of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. a. c. Paragraph 13-5a(1) states frequent incidents of a discreditable nature with civil or military authorities. 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 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//