ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20170018732 APPLICANT REQUESTS: through Counsel, an upgrade of his under other than honorable conditions discharge due to unfitness to honorable discharge under Secretarial Authority, and that the review and ultimate denial of discharge upgrade under the Special Discharge Review Program be vacated. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s brief * Freedoms Foundation at Valley Forge, The 1957 National and School and Awards Report * DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 31 December 1970 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) covering the period 31 December 1970 through 22 July 1971 * DD Form 4, dated 23 July 1971 * DD Form 214, covering the period 23 June 1971 through 22 December 1972 * character statement from applicant’s brother * 21 pages of service medical records * 6 pages of post-service civilian medical records 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. Counsel states: a. The applicant grew up in a military family. His father was a decorated member of the U.S. Air Force who, in 1957, earned the George Washington Honor Medal and his mother was employed by NASA. From a very young age, the applicant learned through example the value of selfless service. He lived as a military dependent on various operational bases in locations including the Philippines and Germany. Such exposure ignited a strong desire within him to serve his country. In high school he was involved in the Junior Reserve Officer Training Corps, thus he had already begun honing his skills for active duty service. b. He first entered service in the Regular Army on 31 December 1970 and received an honorable discharge after 6 months and 22 days of service on his 2-year commitment. He reenlisted for a period of 4 years on 23 July 1971. He excelled in both basic combat training (BCT) and advanced individual training (AIT). He was awarded military occupational specialty (MOS) 76A (Supply Clerk) and stationed at Fort Benning, GA. c. During his period of service he fell from a tank and was injured. Although sent to the hospital, he was advised there was no lasing injury and he could return to duty. He did as instructed, but continued to have significant pain. He returned on more than one occasion to attempt to get further treatment, but to no avail. Ultimately, he began to self-medicate with marijuana for pain control. d. Having been discovered to be in possession of a small amount of marijuana, he was tried at a Special Court-Martial and sentenced to complete the applicable training program at the Disciplinary Barracks, Fort Riley, KS. The issues regarding the Army’s mismanagement of the applicant’s injuries and continued pain were never properly addressed. After successfully completing the required program and still experiencing a great deal of pain, he was released back to full duty and was transferred to Fort Hood, TX, and having come from the disciplinary program at Fort Riley, was immediately stigmatized by his new command. e. Although he attempted to put his past behind him, the constant targeting from his new command made him unable to do so. Ultimately, following additional disciplinary actions, his chain of command recommended him for separation. He was prohibited from receiving a rehabilitative transfer and forced to an administrative separation board. He was separated by a board of officers who recommended he receive an undesirable discharge. f. After separation from the Army, he moved to California where he maintained a successful business for many years and was a productive member of society. He has since returned to his home State of Florida where he is currently retired and spends time with family. g. The applicant seeks redress from the Board based on both material error and material injustice. The failure of the separation authority to consider the applicant’s underlying improper treatment and diagnosis and the relation between his unresolved pain issues and continued self-medication at the time his Undesirable Discharge Certificate was issued represents both an error and injustice that demands correction by the Board. An error is material when it has a real, recognizable, and palpable impact on some aspect beyond being merely incidental. Likewise, a material injustice is any act or omission that is so inapposite to acceptable standards as to render some unavoidable harm, legal or otherwise. h. Here it is clear the applicant’s disciplinary issues were the product of his attempt to mitigate the continued pain he was experiencing from the improper diagnosis and improper treatment of his injury. It is evident that upon his initial enlistment, he excelled as a Soldier and was a top performer during his time in both BCT and AIT. Thus, it is clear that prior to the injury and subsequent improper treatment, he had high ability and aptitude for military training and was otherwise conforming his behavior to meet the standards necessary to succeed in the Army. In fact, the timeline clearly demonstrates the applicant’s problems began when he was denied proper treatment and pain management for his injury. i. Although these types of acute situations are frequent topics in today’s training environment, such was not the case in the Army of the early 1970s. Further testing to determine the seriousness and extent of an injury was not widely practiced due primarily to the scientific and medical limitations of the time. Company commanders and noncommissioned officers were not equipped to deal with these types of issues and often, as in the case of the applicant, viewed continued complaints as a form of malingering. Ultimately, the applicant was essentially forced to turn to other mechanisms to cope with the pain he was experiencing. The reality of his situation at the time of his separation and any determination as to his ability for continued service should have been made after proper medical intervention. Such was not the case. Because the misconduct underlying his separation and characterization of service were not properly assessed within the context of his medical condition and worsening pain, the resulting separation constituted both material error and material injustice requiring Board correction. j. The first signs there were problems can be directly correlated to the injury the applicant sustained and the improper diagnosis. Instead of recognizing this association, his command simply made an assumption. They assumed he was just a bad Soldier, that it was his conscious desire to break the rules, and that he ultimately needed punishment more than proper treatment. This stigmatization represents a direct failure to connect self-medicating associated with pain control with the applicant’s performance as a Soldier. Even a cursory examination of his medical history would have shown that but for the injury, there would have been no misconduct. k. The separation authority failed to consider salient factors directly attributable to the applicant’s injuries suffered in the performance of his duties and further failed to consider his need for pain management, both of which provide significant mitigation for the misconduct in question. 3. The applicant enlisted in the Regular Army on 31 December 1970. He completed the 6-week Supply Clerk course at Fort Polk, LA, and was awarded MOS 76A. 4. After 6 months and 22 days of net active service, he was honorably discharged on 22 July 1971 for the purpose of immediate reenlistment on 23 July 1971. 5. The applicant provided a Standard Form 600 (Chronological Record of Medical Care), which contains an annotation made at the U.S. Army Troop Medical Clinic Number 4, Fort Benning, GA, dated 2 December 1971, stating the applicant had back pain which rendered him unable to lace his shoes due to the amount of pain. The applicant stated his lumbar pain began on the morning of 1 December 1971, when he worked on a tank. He had normal lumbar spine range of motion. 6. A Standard Form 519-A (Radiographic Report), dated 13 December 1971, shows radiographic examination was requested based on the applicant’s non-radiating low back pain and the radiographic report revealed no bony abnormalities were identified. 7. A DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 21 December 1971, shows he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for failing to go to company work call formation at 0730 on 20 December 1971 and remaining absent until 1130 on 20 December 1971. 8. Headquarters, 197th Infantry Brigade Special Court-Martial Order Number 3, dated 14 January 1972, shows he was tried by special court-martial at Fort Benning, GA, where he was charged with and found guilty of wrongfully possessing more or less 16 grams of marihuana on 2 November 1971 (one month prior to his back injury documented on 1 December 1971). 9. He was sentenced to confinement at hard labor for 4 months, reduction in rank/grade to private/E-1, and forfeiture of $100.00 per month for 4 months. 10. A Standard Form 600, dated 14 January 1972, shows the applicant stated he had low back pain. A review of his chart revealed back complaints since 2 December 1971 and treatment with various medications and also lumbar spine films with no abnormal presentation. He was able to step easily into a chair and was not given a physical profile. 11. Multiple DA Forms 2627-1, show he again accepted NJP on the following occasions for the following offenses: * on 22 May 1972, for absenting himself without authority from his unit at Fort Hood, TX, on or about 12 May 1972 and remaining absent until on or about 17 May 1972 * on 13 June 1972, for failing to go to his appointed place of duty, guard mount, without authority on 11 June 1972. 12. On 12 June 1972, his immediate commander requested the applicant be barred from reenlistment in the Regular Army through the approval of a Certificate of Unsuitability for Enlistment/Reeenlistment. His commander stated the following was the rationale for the request: * the applicant had been a member of the unit since 5 April 1972 and during this time clearly demonstrated he was unfit for further military service in the Regular Army * he has been a frequent problem for his superiors, requiring frequent counseling and supervision * his military appearance, maintenance of clothing and equipment, and his military bearing were below the expected standards * his conduct and efficiency ratings in this unit have been unsatisfactory * he was absent without leave once and received field grade NJP under Article 15 of the UCMJ * he was pending court-martial for suspicion of possession of marijuana * he was assigned to this unit from the Disciplinary barracks, Fort Riley, KS 13. The applicant acknowledged he read and understood the allegations made by his commanding officer and elected not to make a statement. 14. On 16 August 1972, his battalion and brigade commanders both recommended approval of his elimination from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. 15. A Medical Statement, dated 21 August 1972, states a complete review of physical and mental examinations have failed to reveal any defects which would have contributed to the misconduct of the applicant. According to Army Regulation 40-501 (Standards of Medical Fitness), he was physically and mentally fit for duty without physical profile limitations. He was responsible for his acts and able to understand and participate in board proceedings. 16. Headquarters, 2nd Brigade, 2nd Armored Division Special Court-Martial Order Number 112, dated 25 September 1972, shows he was arraigned and tried by special court-martial at Fort Hood, TX, where he was charged with and found guilty of: * operating a vehicle without a driver’s license on or about 9 June 1972 * operating a passenger car in a reckless manner by driving at a high rate of speed and on the wrong side of the road, on or about 9 June 1972 17. He was sentenced to confinement at hard labor for 54 days and forfeiture of $108.00 pay per month for 2 months. One previous conviction was considered. On 25 September 1972, the sentence was approved and would be duly executed but the execution of so much thereof as provided for confinement at hard labor for 34 days was suspended for 3 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action. 18. On 6 December 1972, the officer exercising general court-martial jurisdiction approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness and directed his reduction to the rank/grade of private/E-1 and the issuance of an Undesirable Discharge Certificate. 19. He was discharged accordingly on 22 December 1971, after 1 year, 3 months, and 12 days of net active service this period, with lost time from 8 January 1972 through 21 March 1972 and from 12 May 1972 through 16 May 1972. His service was characterized as under conditions other than honorable. 20. On 5 February 1976, the applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge. On 9 April 1976, the ADRB informed the applicant his request for a change in the type and nature of his discharge had been denied. 21. On 2 May 1978, the ADRB informed the applicant after careful consideration of his military records and all available evidence, his request for a change in the type and nature of his discharge under the Department of Defense Discharge Review Program (Special) had been denied. 22. A Kaiser Foundation Hospitals Operation Record, dated 13 February 1986, shows the applicant was diagnosed with a herniated lumbar disc and underwent a left L5-S1 discectomy. 23. The applicant’s brother provided a character statement on 4 October 2017, stating, he wanted to provide a complete understanding of their family and the values they hold for their country. a. Their father served in both the Navy and Air Force and was held in very high regard by all that knew him. Prior to being stationed in Ramstein Germany in 1957, he submitted an essay that won the George Washington Honor Medal in the Valley Forge Patriots’ Award Category. They grew up in this environment of respect and discipline, understanding the value of hard work along with the importance of service as a very young age and many in their family continued this tradition of service through scouting, Junior ROTC, and military service. b. His brother, the applicant, joined the Army and wanted his father to be proud of him. It was very unfortunate he got injured during his military service, as the military lost the talents and gifts he could have provided. Post-service, he sought medical treatment and did not let his back pain keep him from continuing to serve others in multiple capacities. He believes his brother’s discharge should be upgraded as the injury he suffered was not properly handled. 24. On 18 March 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor states: a. Counsel did not provide an explanation as to how the applicant’s history of polysubstance abuse that preceded both his enlistment and the contended back injury and continued through service were related to his back condition. Although back pain/condition are recorded in his medical records, it did not appear to be a significant problem for clinical diagnosis or treatment purposes. b. The applicant met medical retention standards; polysubstance abuse is not a boardable medical condition. He did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. There is no clear correlation between his multiple manifestations of misconduct, and the onset of a back condition on or about 2 December 1971. He concluded based on the available evidence, there is insufficient evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case or mitigate the misconduct that led to his separation in lieu of trial by court-martial. A copy of the complete medical advisory was provided to the Board for their review and consideration. 25. A copy of the advisory opinion was provided to the applicant and Counsel on 19 March 2019, and they were given an opportunity to provided comments. Counsel responded, stating: a. The applicant does not deny that his first instance of misconduct occurred prior to his back injury or that he experimented with drugs prior to his enlistment in the Army. However, he reasserts that his back injury was much more severe at the time of the accident than the Army initially diagnosed and that his injury remained untreated for the remainder of his time as a Soldier. The applicant grew frustrated with the Army and his chain of command because he believed his injury was being ignored and allowed to worsen. b. Due to this, the applicant acted out and began to disregard his military bearing. His actions ultimately led to his separation from the Army, for which he takes accountability. However, this does not nullify the error in discretion made by his chain of command following his back injury that exacerbated his misconduct and was the catalyst for his growing misconduct toward the end of his Army service. Has his back issue been properly diagnosed and treated by his chain of command, he would not have ended up on the slippery slope of misconduct that resulted in his unfavorable discharge. 26. 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. 27. 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. 28. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. It stated an individual was subject to separation for unfitness for frequent incidents of a discreditable nature with civil or military authorities. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief or overturn the Special Discharge Review Program decision of 2 May 1978. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The Board agreed the applicant was continuously medically evaluated with no evidence his back condition was severe enough to receive a permanent 3 Profile or higher requiring medical boarding. Furthermore, the record indicates that the misconduct predated the back pain and medical records do not support the applicant’s claim of a connection between the back pain, self-medication and the misconduct. The Board agreed there were no diagnosed health concerns during his period of service that contributed to the misconduct leading to his separation. The discharge characterization and narrative reason were appropriate and 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 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 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. It stated an individual was subject to separation for unfitness when one or more of the following conditions existed: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, or indecent acts with or assault on a child * drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern of shirking * an established pattern of dishonorable failure to pay just debts * an established pattern showing dishonorable failure to contribute adequate support to dependents, including failure to comply with orders, decrees, or judgments 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. ABCMR Record of Proceedings (cont) AR20170018732 4 1