ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180002142 APPLICANT REQUESTS: a discharge upgrade from under other than honorable conditions (UOTHC) to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Records) * Personal statement * DA Form 20 (Enlisted Qualification Record) * DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) * Standard Form (SF) 88 (Report of Medical Examination), dated 4 September 1963 * SF 89 (Report of Medical History) * DA Form 4 (Enlistment Record – Armed Forces of the United States), dated 16 September 1963, page 1 * SF 89, dated 30 July 1964 * SF 88, dated 30 July 1964 * DD Form 4, dated 18 September 1964, page 1 * DA Form 735 (Health Record – Abstract of Service) * DA Form 601 (Health Record – Immunization Record) * DA Form 600 (Health Record – Chronological Record of Medical Care) multiple pages * DA Form 600, dated 13 December 1963, Incident 1 and Incident 2 dated 10 August 1964 * DA Form 600, dated 19 May 1965, Incident 3 * DA Form 8-275-2 (Clinical Record Cover Sheet), dated 11 August 1965 * DA Form 600, dated 26 July 1965, Incident 4 * DA Form 600, dated 10 August 1965, Incident 5 * DA Form 8-274 (Medical Condition – Physical Profile Record), dated14 July 1965 * DA Form 600, dated 12 August 1965, Incident 6 and Incident 7, dated 30 December 1965 * DA Form 600, dated 7 December 1965, Incident 8 * DA Form 8-275-2, dated 3 January 1966, Incident 9 * DA Form 600, dated 28 March 1966, Incident 10 * DA Form 8-274, undated [no change from 11 August 1965] * DA Form 600, dated 24 May 1966, Incident 11 * SF 89, dated 3 May 1967, Separation * SF 88, 3 May 1967, Separation 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 that during his service in the Army, it was very challenging for a black man due to the environment and atmosphere of the times. He says it made it difficult to survive and avoid confrontation with others. He provides a synopsis of his significant medical history and treatment received during his service. * on 13 December 1963, he was assaulted in the barracks and his right eye was taped at an Army medical treatment center * on 10 August 1964, he was "beat up" by a drill instructor with an M14 rifle sustaining injuries to his right ankle, left ear, left wrist and forearm * on 18 August 1964, he received follow-up treatment from the injuries he incurred on 10 August 1964 * on 9 May 1965, he was admitted to the hospital for observation following an automobile accident where he incurred a concussion * on 26 July 1965, he was involved in another automobile accident rolling over four times; he was admitted to the hospital with a concussion * on 10 August 1965, he received follow-up medical treatment from the concussion due to headaches * he was beaten up by a couple of service members and when he fell to the ground one of the service members smashed his boot into the applicant’s head * on 30 December 965, his medical records document the fact he fell down the stairs injuring his right eye; he claims he was pushed down the stairs and then beat up by fellow service members * on 7 December 1965, he was involved in a motorcycle accident * on 28 March 1966, his record shows he had claustrophobia and he was taunted and put into small spaces by other service members * on 24 May 1966, he suffered two head injuries inflicted by other service members * on 25 June 1967, he was treated for headaches 3. He states, in effect, these are only a few documented incidents of medical treatment for the severe injuries he received from other service members, an automobile accident and motorcycle accident. He lost count of the beatings and mistreatment. He did not get medical treatment for all his injuries. He was told by his chain of command to not receive [medical] treatment(s) for the other injuries, it was not needed. He concludes by saying, "[He] never understood why or who gave them the privilege to be abusive to another human person due to the color of their skin. [He] wore the same uniform and same polished boots, yet they felt the need to treat [him] worse than an animal." 4. The applicant enlisted in the Regular Army on 16 September 1963. The DD Form 4 completed at the time of his enlistment shows in item 4 (Race) he was Caucasian. 5. The applicant’s record contains and he provided a copy of his DA Form 20. This form shows in item 7 (Race) he was Caucasian. 6. On 17 September 1964, he was honorably discharged for the purpose of immediate reenlistment effective 18 September 1964. Within his record is his DD Form 4 showing he reenlisted for a period of 3 years for his second enlistment and it also shows in item 4 (Race) that he was Caucasian. 7. The applicant had a history of accepting nonjudical punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: * on 8 November 1965, for failure to follow a lawful order of a senior noncommissioned officer (NCO) and failure to repair (report for duty) * on 9 April 1966, for being absent without leave (AWOL) from 8 April to 9 April 1966 * on 27 May 1966, for being AWOL from 12 May to 18 May 1966 * on 14 November 1966, for being absent without authority on 5 November 1966 8. On 5 January 1967, the applicant was tried by a special court-martial for the following offenses: * violation of Article 86 of the UCMJ for being AWOL from on or about 15 December to on or about 19 December 1966 * violation of Article 121 of the UCMJ for on or about 16 December 1966 steal one ring of a value of $150 and one pair of shoes of a value of $17 * violation of Article 80 of the UCMJ for on or about 21 December 1966 attempt to escape from lawful custody 9. He pled guilty and was found guilty of the first two charges. The third charge was dismissed on grounds of insufficient evidence. The applicant was sentenced by the military judge to confinement at hard labor for 6 months, to forfeit $59 per month for 6 months and to be reduced to the grade of private (PVT)/pay grade E-1. 10. On 9 January 1967, the convening authority approved the sentence and ordered it executed. The record trial was forwarded to the Judge Advocate General of the Army for appellate review. 11. On 10 January 1967, the applicant was examined by a military psychiatrist at the Office of the Chief Neuropsychiatric Service. He provided a certificate wherein he certified the report of psychiatric evaluation of the applicant who was initially evaluated on 14 November 1966 and again on 9 January 1967. After examinations, he was diagnosed with passive-aggressive reaction; chronic; moderate; manifested by poorly controlled hostility, resentfulness, obstructionism to authority, inefficiency, and defective attitude and poor motivation, with anti-social acting out behavior. He also stated in his certificate that the applicant’s condition existed prior to service and was not considered in the line of duty. In the discussion element of the certificate the psychiatrist stated the applicant had a long history of a charaterlogical disorder with anti-social acting-out behavior. He stated, “[The applicant] is much more of a liability than an asset to the Army.” He opined the applicant was unsuitable for continued military duty and that his condition was not amenable to hospitalization, treatment, disciplinary action, training or reclassification to another type of duty. He recommended the applicant be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) because of his characterlogical disorder. 12. On 28 April 1967, the unexecuted portion of the approved sentence to confinement at hard labor and forfeiture of pay was suspended for 3 months. 13. On 3 May 1967, the applicant underwent a medical examination in preparation for his pending separation action. He had no limiting medical or psychological physical profile ratings and was found qualified for retention or separation. 14. On 9 May 1967, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-212 by reason of unfitness. He stated the applicant’s duty was characterized by behavior which has caused him to repeatedly be the subject of punitive action. He has admitted to the use and possession of marijuana. His performance of duty was unsatisfactory. He stated that efforts to rehabilitate him failed due to the applicant’s unwillingness to cooperate and unresponsiveness to counselling and rehabilitation efforts. He concluded by saying the applicant possessed the mental ability to perform his duties (cook), but that he did not have the desire or the initiative to do so. His conduct and efficiency ratings were both poor during the period from 17 October to 13 December 1966. 15. On 6 June 1967, he sought legal counsel and was advised of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212. After counselling, he waived consideration of his case by a board of officers including a personal appearance. He further stated he would not submit statements on his own behalf. He acknowledged that he understood the result of issuance of a discharge characterization of UOTHC. He understood he may be ineligible for many or all benefits as a Veteran under both Federal and State law, and that he may encounter substantial prejudice in civilian life. He indicated he retained a copy of this statement. The applicant and his military counsel both signed this document. 16. On 14 June 1967, the approval authority approved the applicant’s discharge by reason of unfitness under the provisions of Army Regulation 635-212. He further directed issuance of an Undesirable Discharge Certificate (with a characterization of UOTHC). 17. On 21 June 1967, the applicant was discharged accordingly. He was issued a DD Form 214 showing the following pertinent information: * Block 11a (Type of Transfer or Discharge) – discharge * Block 11c (Reason and Authority) – Army Regulation 635-212 * Block 13a (Character of Service) – UOTHC * Block 22b (Statement of Service – Total Active Service) – 3 years, 9 months and 3 days 18. As evidence to support his application, the applicant provided and his record contains his military service treatment records. He went through his medical records and highlighted 11 incidents and/or dates he received medical treatment. a. Incident 1 on 13 December 1963 at Fort Dix, New Jersey, the medical provider records the applicant’s statement that he was repeatedly assaulted in the barracks. He suffered abrasions on his face and his right rib cage was very tender with probable contusions. b. Incident 2 on 10 August 1964 at the 8th Infantry Division Dispensary in U.S. Army Europe (USAREUR) – Germany, he received medical treatment because he was beat with an M14 rifle sustaining injuries to his right ankle, left ear, left wrist and forearm. He did receive sutures to his right ear. On 18 August 1964, he received follow-up treatment from the injuries he incurred on 10 August 1964. c. Incident 3 on 19 May 1965 he was seen at the hospital orthopedic clinic for painful feet – soreness of his medial malleolus because he had been standing on his feet for 4 to 6 hours a day. He received x-rays, an ultrasound, and wearing of prosthesis was recommended. d. Incident 4 on 26 July 1965 he received a walking cast. There are no recorded circumstances or incidents describing how he hurt his foot other than he was repeatedly seen in the orthopedic clinic for painful feet (medial malleolus) which potentially led to his foot being cast for stabilization. e. Incident 5 on 10 August 1965 while still in Germany, the applicant totaled a 1956 Volkswagen in an accident. He sought treatment at his unit’s dispensary for bilateral temporal headaches. The attending physician referred him to the hospital for admission so he could be observed for 24 hours. On 11 August 1965, he was released from the hospital. A DA Form 8-275-2 (Clinical Record Cover Sheet) shows he had a concussion of the brain that was accidently incurred when he was involved in an automobile accident on 9 August 1965. The medical records officer stated in injury was incurred in the line of duty with no evidence of alcohol or narcotics. f. On 14 July 1965 he received a DA Form 8-274 (Medical Condition – Physical Profile Record) showing he received a temporary profile of "3" for his lower extremities due to his foot condition. He was directed to return to the clinic on 11 August 1965. g. Incident 6 on 12 August 1965 he sought treatment for headaches. The medical notes said to see the entry for 10 August 1965 (automobile accident). He was prescribed more medication to help relieve his headaches. h. Incident 7 and 9 as recounted by the applicant shows on 30 December 1965 he sought medical treatment after he was involved in a fight. His right eye, nose and mouth were injured and subsequently treated. The medical provider noted he had been drinking and playing pool and got into a fight. The right eye wound was superficial with lacerations below the eye. A second form, DA Form 8-275-2, notes he fractured his nose with no artery or nerve involvement and he had a contusion of his right eye. It states, “Accidently incurred, when patient fell down stairs, Mannheim, Germany, 30 December 1965.” Both diagnoses were considered in line of duty. He was treated and released. i. Incident 8 (out of chronological order) occurred on 7 December 1965 when he sought medical treatment for left ankle pain. The medical provider wrote the applicant had fractured his left ankle in a motorcycle accident in October 1964 and was in a cast for 5 weeks and on bed rest for 3 more weeks. The applicant stated he had pain in his ankle when it was cold and after wearing his combat boots. His foot was x-rayed and there was no evidence of a fracture. Applicant was returned to duty. j. Incident 10 on 28 March 1966 he sought treatment for severe claustrophobia from enclosed places when on water. The provider wrote, "States given [temporary] profile to come to Europe and thus traveled by air." The provider recommended appropriate action be taken for the applicant to travel by air. k. Incident 11 on 24 May 1966 he sought treatment for headaches. He recounted how he injured his head in a car accident and then a fight. He said his headaches were worse in the morning and disappeared as the day went by. He was diagnosed with tension headaches and prescribed medication. 19. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 20. 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 (TBI); 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 to 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. 21. 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. 22. On 12 March 2019, the Army Review Boards Agency (ARBA) senior clinical psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. The advisory states based on the available evidence it could not determine if there was a nexus between his reported behavioral health condition and if it contributed to the applicant’s misconduct resulting in his discharge. There is a lack of medical and military documentation to determine if a behavioral health condition contributed to the misconduct that led to his separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 23. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, and found the applicant’s three years of honorable service to be compelling. The Board also found that the punishment for the misconduct that resulted in the discharge was harsh. The Board agreed with the medical advisory that due to a lack of medical and military documentation there is insufficient evidence to determine if a behavioral health condition contributed to the misconduct that led to applicant’s separation from Active Duty. However, the Board found that the applicant’s case warrants clemency in that the applicant’s honorable service and time served for his misconduct has mitigated the misconduct resulting in the 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending “21 Jun 67” showing his characterization of service as “General Under Honorable Conditions”, vice “Other Than Honorable Conditions”. 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 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 unsuitability and unfitness. Paragraph 6 provided that an individual was subject to separation for unfitness because of 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; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees, or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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. //NOTHING FOLLOWS//