ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 August 2020DOCKET NUMBER: AR20180008042 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), undated, with self-authored statement, dated 3 April 2019 .three third party letters of support FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b). However, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states he started to experience mental health symptoms when heenlisted. In an attached self-authored statement, he adds the following: a.His aunt was dying of cancer; she was the closest person in his life. He hadbroken up with his girlfriend and was severely depressed. He had asked his cousin and two friends to enlist with him but neither would do so. A man who was a Jehovah's Witness told him not to enlist. b.When asked if he had any mental illness in his family, he informed his recruiterthat his mother had been treated for mental illness her whole adult life. The recruiter told him not to tell anyone about his mother's mental health. c.He had always looked up to his favorite uncle. He tried to follow in his footsteps.His uncle never got in any trouble or went to jail. He enlisted as a motor transport operator like his uncle. d.He doesn’t know what kind of medication he was on while he was in thepsychiatric hospital at Fort Leonard Wood, Missouri but he heard God's voice and it terrified him. He lost his senses and didn't know what he was doing. All of these things gave him mental illness and made his life a living hell. e.He was almost beaten to death by police. He was beaten with nightsticks andthey broke his teeth. He had a wire shoved up his penis. While in the psychiatric hospital, he was locked in freezing cold rooms where the ice in his water would not melt. He heard them cocking their guns like they were going to try and shoot him. While incarcerated, they would not feed him. They turned off his water and he had to drink his own urine to stay alive. His mother came and got him from military camp. 3.The applicant enlisted in the Regular Army on 9 December 1977. He was assignedto Fort Leonard Wood, Missouri to complete his basic combat training (BCT). 4.The applicant's service record contains a U.S. Army (USA) Medical DepartmentActivity (MEDDAC) Form 117-R (Report of Mental Hygiene Evaluation), dated 27 December 1977. The mental hygiene officer who completed the form noted thefollowing: .the applicant's behavior was passive-aggressive, bizarre and suspicious .he did not display any violent tendencies .he was fully alert and fully oriented with a normal thinking process .the impression was that of a moderate personality disorder .the recommendation was elimination by administrative action .he was capable of distinguishing right from wrong; responsible for his actions;and possessed the capability to participate in board and legal proceedings .he repeatedly demonstrated lack of motivation to remain on active duty .his unusual acts were not borne out of psychological nature but a willful attemptto obtain release from active duty .he refused any type of counseling intervention 5.An incident at Building 737, Company C, 5th Battalion, 3rd Basic Combat TrainingBrigade, Fort Leonard Wood, Missouri, on 1 January 1978, resulted in the applicant'sapprehension by Military Police (MP) Officers and confinement at the U.S. ArmyConfinement Facility (ACF), Fort Leonard Wood, Missouri. 6.Court-martial charges were preferred against the applicant on 3 January 1978, forviolations of the Uniform Code of Military Justice (UCMJ) that took place on 1 January1978. The relevant DD Form 458 (Charge Sheet) shows he was charged with thefollowing: .resisting being lawfully apprehended by an armed force policeman .committing an assault upon Staff Sergeant Gxxx, by striking him in the face,intentionally inflicting grievous bodily harm requiring sutures .committing an assault upon Private/E-1 Rxxxxxxx, by striking him in the headwith a rock, intentionally inflicting grievous bodily harm requiring sutures .committing an assault upon Specialist Mxxx, a person having and in theexecution of his military police duties, by striking him in the face with a fist .committing an assault upon Private/E-1 Axxxx, by striking him in the face with afist .unlawfully striking Private/E-1 Gxxxxxxxx in the mouth with a closed fist .willfully damaging, without proper authority, by throwing rocks through a windowof Building 736, military property of the United States .willfully and wrongfully damaging a privately owned vehicle, the property ofMaster Sergeant Rxxxxx, by breaking the rear window of his vehicle anddumping sand into the vehicle 7.The applicant's service record contains five DA Forms 2823 (Sworn Statements) andone DA Form 2496 (Disposition Form) describing the circumstances that took place on1 January 1978, resulting in the applicant's court-martial charges. 8.The applicant's immediate commander recommended that the applicant be tried bycourt-martial on 4 January 1978. The applicant's intermediate chain of commandfurther recommended he be tried by special court-martial with the authority to adjudge abad conduct discharge (BCD) based upon the seriousness of the alleged offenses. 9.The applicant consulted with legal counsel on 9 January 1978. a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c.He was advised he could submit any statements he desired in his behalf. In aself-authored statement, he stated that he did not want to remain in the Army. He wanted to be a Jehovah's Witness because he loved them. He was told he could not be with them so he decided to fight his way out. All of the incidents were a result of that belief. Now, he believes if he goes along with the rules, he will be allowed to be with the Jehovah's Witnesses. 10.The applicant's chain of command recommended disapproval of the applicant'srequest for discharge in lieu of trial by court-martial based upon his character of serviceand the seriousness of the charges against him. 11.A request for a sanity board prior to trial by court-martial was submitted by defensecounsel on 10 January 1978, to determine if at the time of the alleged offenses, byreason of mental disease or defect, the applicant was unable to appreciate thecriminality of his conduct and whether or not he was able to understand the nature ofthe proceedings against him. 12.A sanity board was conducted on 23 January 1978, in the Community MentalHealth Activity, U.S. General Leonard Wood Army Hospital. The board's findingsincluded the following: a.Throughout the conduct of the interview, the service member was in no obviousdistress. He acknowledged understanding his rights. He acknowledged being in the "mental" ward over Christmas. He became vague in his responses when asked about the events leading to his confinement. He recalled being intensely unhappy and wanting to go home. He recalled being in a fight and being subdued by MPs. He made a statement that he was fed up with the delay in being released from active duty and was trying to expedite his return home. During the course of the interview, he manifested no evidence of mental illness and did not appear to be mentally impaired at the time of his alleged misconduct. b.Social maladjustment with no specific diagnosis was noted as the diagnosis. c.At the time of the alleged offense, he had substantial capacity to conform hisconduct to the requirements of the law. d.He possessed sufficient mental capacity to understand the nature of theproceedings against him and to conduct or cooperate intelligently in his defense. 13.Additional court-martial charges were preferred against the applicant on 27 January1978, for violations of the UCMJ. The relevant DD Form 458 shows he was chargedwith assaulting Sergeant Dxxx, a person then in the execution of military police duties,by striking him in the head with his fists, on or about 25 January 1978. 14.An investigation was initiated on 31 January 1978, pursuant to Article 32b of theUCMJ, to investigate the facts and circumstances concerning the charges against theapplicant. The applicant was notified of the investigation and the rights available to him. 15.The applicant's record contains an Investigating Officer's Report, dated 6 February1978, 21 witness statements, and one unsworn personal statement given by him to theinvestigating officer. The documents provide the facts and circumstances regarding theincidents that took place on 1 January 1978 and 25 January 1978, which resulted in hisconfinement and the court-martial charges preferred against him. 16.The General Court-Martial Convening Authority (GCMCA) approved the applicant'srequest for discharge on 9 February 1978, under the provisions of Army Regulation635-200, Chapter 10, for the good of the service. The GCMCA further directed that theapplicant be reduced to the lowest enlisted grade and that he be issued aDD Form 794A (UOTHC Discharge Certificate). 17.The applicant was discharged on 10 February 1978, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214(Report of Separation from Active Duty) he was issued confirms he was discharged inthe lowest enlisted grade and his service was characterized as UOTHC. He wascredited with two months and two days of active service. 18.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge. Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial. 19.The applicant provides three third party letters of support: a.A behavior therapist at Journey Home Long Term Structured Residential (LTSR),Pittsburgh, Pennsylvania, states the applicant is a resident there and has been receiving treatment there since 2017. He is cooperative, motivated, participates in group therapy, and takes his medication as prescribed. He is compliant with the rules and regulations and shows staff he is participating in his mental health treatment. He has been working on independent living skills and increasing integration within the community. Overall, he has made some improvement. b.A lead counselor at Journey Home (LTSR) states that she has been working withthe applicant for about a year. He has done exceptionally well in their program. He has been an active participant in treatment. He has assisted staff by leading peer groups that focus on recovery, spirituality and recreational activities. He finds opportunities each day to help those around him. c.A service coordinator at Western Psychiatric Institute and Clinic, Pittsburgh,Pennsylvania, states the applicant is doing well within the community setting. He is respectable with his peers and can communicate and hold a friendly conversation. He is a motivated individual who sets goals for himself and works hard to achieve them. He is an asset to the community and shows no signs of any setbacks. A change in his discharge would reflect the progress he has made. 20.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military records. The Armed Forces Health LongitudinalTechnology Application (AHLTA) & Health Artifacts Image Management Solutions(HAIMS) was not in use at the time of his service. His hardcopy medical records werenot available for review. A review of the applicant’s service record indicates he had aGT score of 97. GT scores are correlated to IQ placing the applicant’s IQ in theaverage range. He was evaluated by a psychiatrist on 27 Dec 1977 and diagnosed withPersonality Disorder. He did not have any psychiatric conditions that warranteddisposition through the medical board process and administrative separation wasrecommended. The misconduct occurred on 1 Jan 1978. On 10 Jan 1978, theapplicant’s defense counsel requested a sanity board to determine if the applicantlacked capacity at the time of the offense. On 26 Jan 1978, a sanity board wasconvened and determined the applicant “was not mentally impaired at the time of hisalleged misconduct. Of note, during the sanity board the applicant stated he was fed upwith the delay in being released from active duty and was trying to expedite his returnhome. A review of the applicant’s packet indicates he was in a residential recoverybased program in 2018 (dates of support letters). There is no information regardingpost service behavioral health diagnoses. A review of VA’s Joint Legacy Viewer (JLV)indicates he has not been evaluated or treated in the VA system. He does not have aservice connected disability rating. In accordance with the 3 Sep 2014 Secretary ofDefense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidancethere is no documentation to support a behavioral health condition at the time of hisdischarge. He did not have a medically boardable condition at the time of his discharge.There is no documented behavioral health diagnosis to consider with respect tomitigation of his misconduct. 21.The Board should consider the applicant's statement and provided evidence inaccordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief. 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 and found insufficient evidence of error, injustice, or inequity. The Board agreed with the Medical Advisory Opinion that the available record does not reasonably support a behavioral health condition at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. There is no documented behavioral health conditions to consider with respect to mitigation of the misconduct that led to his discharge. The Board also found limited evidence of post-service honorable conduct or other possible grounds for clemency that might have mitigated the discharge characterization. Therefore, the Board agreed that the applicant’s discharge 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 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. X 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 militaryrecords must be filed within three years after discovery of the alleged error or injustice.This provision of law also allows the ABCMR to excuse an applicant's failure to timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, Boards 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//