IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180005980 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his Bad Conduct Discharge (BCD) to an Honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum for Secretaries of the Military Departments – Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 8 March 1972 * National Labor Relations Board letter dated 27 March 1979 * Response letter to the ABCMR dated 15 July 2008 * Army Review Boards Agency Letter dated 22 July 2008 * ABCMR Case Management Division letter dated 17 November 2008 * Response letter to the ABCMR dated 22 October 2008 * Department of Veterans Affairs letter dated 24 April 2009 * Department of Veterans Affairs letter dated 15 March 2011 * The Saluda Center letter (Medical Documentation) dated 24 January 2012 * Veterans Affairs (VA) Rating Decision letter dated 2 May 2016 * VA Letter dated 26 July 2016 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 AR20080004846 on 26 June 2008. 2. The applicant states he requests his reconsideration be reviewed based upon provisions defined in the Memorandum for Secretaries of the Military Departments – Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI). He adds that he has made 7 previous attempts to have his discharge upgraded. He was diagnosed with anxiety prior to be discharged and suffered from PTSD as a result of an altercation with the Ku Klux Klan (KKK) prior to enlisting in the Army. The alleged incident that occurred on 18 April 1969 resulted in his discharge. He contests that both his previous and military service history have contributed to his reaction in certain events that have taken place, both then and now. He is currently rated at 70% service connected for PTSD with a total rating of 100%. Initially he was denied compensation for numerous presumptive conditions for his service in Vietnam due to his discharge but that has been overturned. He is currently 71 and has been fighting to have his character of service changed since 1972. Considering his age and the time that has elapsed, his intent is solely based upon his dignity and admiration for the country. 3. A review of the applicant’s available service records reflects the following: a. On 8 November 1967 he enlisted in the Regular Army for 3 years. b. On 26 January 1968 he completed Advanced Individual Training and was awarded the 36K (Field Wireman) Military Occupational Specialty (MOS). c. On 23 February 1968 he was issued an Article 15 for violating Article 91 (Disrespect) of the Uniformed Code of Military Justice (UCMJ); punishment indicates forfeiture of $45.00, restriction and extra duty for 25 days to be run concurrently. He appealed this decision and the appellate authority denied his request on 8 March 1968. d. On 13 March 1968 (Special Order# 48) punishment of forfeiture and restriction was imposed. e. From 1 December 1968 through 2 December 1969 he served in Vietnam. f. On 14 January 1969 he was promoted to the rank of Specialist (SPC) / E-4. g. On 17 April 1969 he was issued another Article 15 in violation of Article 86 of the UCMJ for failing to be at his appointed place of duty; punishment indicates forfeiture of $15.00. h. On 20 April 1969 (Special Order# 22) punishment of forfeiture was imposed. i. On 20 July 1969 (Summary Court Martial Order# 1) he was found guilty of violating Article 91 of the UCMJ and therefor sentenced to be reduced in grade to the rank of Private/ E-1, forfeiture of $73.00 per month for 1 month and extra duty for 30 days. This sentence was adjudged on 14 July 1969. This sentence was approved and ordered effective 20 July 1969. j. On 5 August 1969 he was charged with: i. violating Article 80, UCMJ, he attempted to murder his Company First Sergeant by shooting at him with an M-16 rifle ii. violating Article 91, UCMJ he assaulted his Company First Sergeant by leaping at him and swinging his fists at him iii. violating Article 134, UCMJ, he wrongfully communicated a threat to a Sergeant by saying, "I hope you realize what the Orderly Room does to me depends on whether you live or die. You better tip lightly over the battery area from now on because anything that happens, I might do you a job," or words to that effect iv. violating Article 95, UCMJ, he resisted apprehension by military police by kicking them and swinging at them with his fists. k. On 19 September 1969 his sentence was adjudged. l. On 3 November 1969 he was advised of the response concerning his request for relief as promulgated in his summary court martial adjudged on 14 July 1969 that a sufficient basis for relief under any of the four grounds set forth in Article 69 of the UCMJ, as amended, had not been established. m. On 17 May 1970 (General Court Martial Order# 18) he was found guilty of all charges and therefore sentenced to 5 years confinement and a dishonorable discharge as adjudged on 19 September 1969 and appealed on 17 May 1970. n. On 26 January 1971 (General Court Martial Order# 3) the unserved portion of his sentence to confinement for 5 years were deferred effective the date of this order until such time as the sentence was ordered into execution. o. On 27 January 1971 he requested to be granted excess leave. p. On 27 January 1971 he was released on parole. q. On 28 January 1971(Special Order# 19) he was discharged from the Disciplinary Barracks, Fort Leavenworth, Kansas. r. On 28 January 1972 (General Court Martial Order# 95) provides the sentence to dishonorable discharge and confinement five years, adjudged on 19 September 1969, as promulgated in General Court Martial Order# 18, has been affirmed pursuant to Article 66. The provisions of Article 71 having been complied with, the sentence will be duly executed. By General Court-Martial Order# 3, the unserved portion of the sentence to confinement was deferred effective 26 January 1971 to the dated of this order. The applicant was to be confined to the Disciplinary Barracks, Fort Leavenworth, Kansas and the confinement would be served therein or elsewhere as competent authority may direct. s. On 8 March 1972 he was discharged under the provisions of Army regulation (AR) 635-200, paragraph 11-a; the Character of Service indicates “Dishonorable”; Time loss reflects 415 days (9 September 1969 through 7 November 1970). t. On 30 June 1975 his request for correction of his military records was denied on 21 May 1975 citing that there was insufficient evidence presented to indicate that there had been a probable material error or injustice. u. On 26 October 1981 his request for reconsideration was not considered by the board citing that there was insufficient evidence presented to warrant granting a formal hearing. v. On 22 February 1982 his request for reconsideration was not considered by the board citing that there was insufficient evidence presented to warrant granting a formal hearing. w. On 22 June 1984 his request for reconsideration was not considered by the board citing that there was insufficient evidence presented to warrant granting a formal hearing. 4. The applicant provides the following: a. Memorandum for Secretaries of the Military Departments – Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) reflective of the guidance as implemented to assist Veterans seeking redress while simultaneously ensuring fair and consistent results in these difficult cases. Similarly, cases considered previously, either by Discharge Review Boards, or by BCMRs or the BCNR, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. b. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 8 March 1972 – see 3r. above. c. National Labor Relations Board letter dated 27 March 1979 from a Mr. P_ wherein he appears to provides account of information pertaining to the applicant’s case file wherein he states that he previously left the applicant case file on the table but someone must have removed it and or thrown it away. He denies ever being in possession of the applicant’s file since departing the military. d. Response letter to the ABCMR dated 15 July 2008 reflective of the applicant’s disagreement with the 26 June 2008 Board decision citing that a party to his case was not able to testify during his proceedings. He further requested copies of all records and transcripts utilized in making the Board’s decision. e. Army Review Boards Agency Letter dated 22 July 2008 reflective of him being advised of the procedures to request reconsideration of the Boards decision as well as how to obtain the previously requested information. f. Response letter to the ABCMR dated 22 October 2008 reflective of his disagreement with the Boards decision to deny his request and again requested reconsideration. g. ABCMR Case Management Division letter dated 17 November 2008 reflective of the applicant being advised that a review of his records indicated that his request for reconsideration was not within one year of the Boards original decision and his application had already been previously reconsidered. Further, the ABCMR had reviewed his applications for reconsideration once prior to 1975 (the exact date is not known) and on the following dates: 21 May 1975; 26 October 1981, 1 April 1982, 22 June 1984, and in ABCMR Case Docket AC9506125 on 27 July 1995. The AC9506125 request for reconsideration was the final administrative action taken by the Secretary of the Army. As such, there was no further action contemplated by the ABCMR since he was not eligible for further reconsideration by this Board. h. Department of Veterans Affairs letter dated 24 April 2009 reflective of their denial of his claim citing that the conditions under which he was discharged constituted a bar to payment of VA benefits. i. Department of Veterans Affairs letter dated 15 March 2011 reflective of their inability to initiate a new claim for PTSD as his character of service was not honorable for VA purposes. As such he was not eligible to apply for any type of compensation from the VA. j. The Saluda Center letter (Medical Documentation) dated 24 January 2012 reflective of the psychiatric assessment of the applicant’s mental health wherein he provides that the circumstances occurring during the applicant’s service in Vietnam led to an Acute Stress Disorder (ASD) with psychosis/insanity. In support of this statement he provides a chronological account of the applicant’s pre-service and military stressors as related to his PTSD symptoms. This information is further provided in its entirety for your review within the supporting documents. The applicant is also being treated for major depression disorder. k. Veterans Affairs (VA) Rating Decision letter dated 2 May 2016 reflective of him being rated by the VA at 70% for PTSD with major depressive disorder effective 25 January 2011. l. VA Letter dated 26 July 2016 reflective of his disability entitlement payment amounts and effective dates. 5. On 26 June 2008 Docket Number AR20080004846, the Board denied the applicant’s request for a discharge upgrade citing that there was no basis for upgrading the type of discharge that he received. The applicant was convicted by a general court-martial of attempted murder, assault, communicating a threat, and resisting apprehension. He was sentenced to confinement. Trial by court-martial was warranted by the gravity of the offenses charged. The documentation provided did not reflect that the discharge that he received was erroneous or unjust. Further that there was no evidence presented to support his contention that he was not afforded due process during his court martial. 6. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not in use at the time of his service. His hardcopy military medical records were not available for review. a. A review of VA’s Joint Legacy Viewer (JLV) indicates the applicant has been diagnosed and received treatment for PTSD. His electronic medical records start in December 2007 with his most recent appointment on 10 Jul 2020. He has a service connected disability rating of 100% with 70% for PTSD. The applicant’s packet contained a documented dated 24 Jan 2012 from the psychiatric nurse practitioner that started treating him in December 2010. The provider diagnosed him with PTSD and asserts he was having a psychotic episode when he committed the misconduct that led to his court-martial conviction. This assertion is based on the applicant’s memory of the events and emotions leading up to and including the day of 5 Aug 1969. The applicant reported jumping the officer who called him “nigger.” Per his report he remembered the events leading up to the situation, chose to physically attack the officer who used inappropriate language. He felt vulnerable to attack by the guards which would be an accurate expectation of guards once him physically attacking an officer. The applicant’s ability to describe the events and his reactions to include emotions is not consistent with a psychotic episode. There is no documentation or evidence to support insanity at the time of the offense. b. The letter from the lawyer In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. He met retention standards at the time of his discharge. PTSD is considered a mitigating factor for communicating a threat and resisting apprehension but is not a mitigating factor for assault or attempted murder offenses. 7. In reaching its determination, the Board can consider the applicant's petition, his statements, and the FSM's service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 8. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is insufficient evidence to grant relief and amend the ABCMR decision set forth in Docket Number AR20080004846 on 26 June 2008. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement. The Board agreed with the ARBA Medical Advisor that the applicant’s PTSD does not mitigate all of the misconduct for which the applicant was discharged. Therefore, the Board agreed that the applicant’s current characterization is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080004846 on 26 June 2008. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time sets forth the basic authority for the separation of enlisted personnel. Chapter 11 (Dishonorable and Bad Conduct Discharge) provides that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.. It further provides that: a. 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. 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. c. A Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. 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 PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 4. 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 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20180005980 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1