ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  11 August 2020 DOCKET NUMBER:  AR20180008709 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 1 May 2018

.Mental Health Evaluation, dated 31 May 1956

.DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge), for the period ending 11 January 1957

.Impact Statement, dated 10 April 2018

.Letter from Oncologist, dated 26 April 2018

.miscellaneous medical records and discharge documents



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:

a.He was raised in a Catholic orphanage from age four through his junior year ofhigh school.  It was a very structured existence with every moment of every day vigorously accounted for.  It was a time when corporal punishment was very much meted out for every infraction great and small.  Every nun was an authority figure to be obeyed instantly on pain of punishment.  The major point he is trying to show is the nexus for his devoted hatred of that kind of authority. 

b.He can’t say that he enjoyed Army life but the training part was great.  He quicklymastered most of the tasks and enjoyed the firing range and simulated live fire training. On completion of advanced individual training, recruiters came with the offer of an 
additional $50 pay per month for airborne training.  He easily passed the physical training test and was soon on his way to Fort Campbell, KY. 

c.Platoon Cadre were becoming downright abusive to some.  Idiotic orders and thedaily prolonged close order drills were useless and stupid.  The Army had recently been desegregated and black cadre were becoming more and more common place and accepted.  In his young life he’d had more than his share of absolutely incompetent people controlling his every action.  On the first night in the field after a jump, he pulled guard duty on one of the paths leading to the encampment.  As luck would have it, here comes this lousy sergeant leading a whole platoon of bewildered recruits.  He put the sergeant through the entire halt and identification process, while he called for the Corporal of the Guard. 

d.The sergeant’s hatred for him blossomed after that and stupid, often inane tasks,assignments, and punishments increased in number and degradation.  He took a three day pass and the sergeant never saw him again.  It seemed that those who found themselves with some authority were abusing it.  Small sadistic minds relished this ability to lord over others and force them to do their will.  It is not unique to the military that rotten subordinates are sheltered and protected by superiors in almost every instance. 

e.He went back to his old neighborhood in New York City.  He was quite analcoholic at the ripe age of 18.  It was suggested that he raid the local butcher shop, as the owners had refused to advance credit to a family in need.  He pried the back window of the shop open and began handing out meat of all kind, until suddenly he handed a pork shoulder to a police officer.  He was arrested after medical treatment and taken to central booking.  The judge dismissed the case and ordered it be given juvenile offender treatment and permanently sealed.  He was turned over to the military authorities. 

f.He was sentenced to six months in the stockade and to forfeit two thirds of hispay.  He was reprocessed and assigned to the 509th Airborne Infantry Regiment at Fort Bragg, NC.  From the day he got there he knew the company commander and his staff considered him a screw up and wanted to get rid of him in any way possible.  He was injured when a two and half ton truck lurched forward and foot lockers came falling off the truck knocking him to the ground.  He was taken to the hospital with a possible broken back.  He was afraid to do almost any task that had any element of danger involved.  He was enormously relieved when he was taken off jump status even though it meant a very large reduction in pay.  After this incident, he was convinced some Army personnel would go to almost any length to get rid of him. 

g.He was ordered to Fort Rucker, AL; a disaster for him and the Army.  He wasused as a dummy and taken out in the field and left there.  Soon a helicopter arrived 
and he was lifted into a side unit and a metal cover was locked over him.  Panic overtook him as he was left screaming and terrified.  Thankfully, the chopper landed at their base with no further problems.  A week or so later he was taken to another field and strapped into a harness which was attached to very big poles horizontally.  Between them a thick wire was stretched and attached to the harness he was locked in.  A single engine plane with a large hook suspended underneath the fuselage swept down and hooked the horizontal wire, which took him off the ground and suspended him in the air for a mile or more. 

h.He understood the Army had no concern for his health and safety.  It made himwant to get out once and for all.  He knew better than to engage in any unlawful or illegal behaviors, so he decided to simply ignore all orders and requirements.  He let his appearance deteriorate, refused to clean up, bathe regularly or participate in any way.  He even refused ordinary military courtesy and when he was given an Article 15 he ignored it and went absent without leave (AWOL).  He was given an undesirable discharge. 

i.In late 1960, he married his sweetheart and had a child.  He was in a fight in 1961,which brought on more severe panic attacks and heavy drinking.  He was sent to the psychiatric ward at Bellevue Hospital.  After a two week stay, he was released and informed that the panic attacks could come on at any time.  For 11 years, accompanied by his wife and five children, he participated in and managed eight successful political campaigns.  He became the administrative assistant for the pastor of his local church.  He was elected to the Board of Directors of the local Anti-Poverty Board and served as the Chair of its Executive committee for more than nine years.  He worked with various community boards, local officials, and church committees to have a housing project built in his neighborhood. 

j.In 1984, he earned his bachelor degree from Fordham University and in a yearand a half completed a master degree in Political Science/Policy Analysis.  Through all the years he was haunted by the knowledge that any in depth examination of his background would turn up the undesirable discharge.  Even with his wealth of community involvement and political connections, the ever present panic disorder coupled with the discharge made sure he never put himself forward to take on any of the dozens of very well paid and often prestigious positions open to him. 

3.The applicant enlisted in the Regular Army on 18 May 1955.

4.A DA Form 26 (Record of Court-Martial Conviction) shows the applicant wasconvicted before:

a.A special court-martial on 15 March 1956, at Fort Dix, NJ, wherein he was foundguilty of being AWOL from on or about 5 December 1955 to on or about 21 February 
1956.  The court sentenced him to forfeiture of pay for six months and confinement at hard labor for six months (confinement suspended for six months). 

b.A special court-martial on 14 May 1956, at Fort Dix, NJ, wherein he was foundguilty of being AWOL from on or about 6 April 1956 to on or about 19 April 1956.  The court sentenced him to forfeiture of pay for three months and confinement at hard labor for three months. 

5.The applicant underwent a mental hygiene evaluation on 31 May 1956.  He wasdetermined to be motivated to return to duty and was recommended for appearancebefore the Classification Board for possible assignment in the rehabilitation company.

6.A DD Form 481-2 (Clinical Record Cover Sheet) indicates the applicant suffered acontusion to his lower back on 15 October 1956, when a footlocker fell off a truck andstruck him across the back.

7.A DD Form 789 (Unit Punishment Record) shows the applicant accepted non-judicialpunishment, under the provisions of Article 15 of the Uniform Code of Military Justice(UCMJ), for being AWOL on or about 13 December 1956.

8.Before a summary court-martial on 19 December 1956, at Fort Rucker, AL, theapplicant was found guilty of breaking restriction on or about 16 December 1956.  Thecourt sentenced him to forfeiture of pay for one month and confinement at hard labor forone month.

9.The applicant's immediate commander notified the applicant, on 26 December 1956,of his intent to initiate actions to separate the applicant before a Board of Officers, underthe provisions of Army Regulation 635-208 (Personnel Separations – Discharge –Undesirable Habits and Traits of Character).  The applicant acknowledged receipt onthe same date and declined representation by counsel.

10.The applicant's immediate commander, on 28 December 1956, recommended theapplicant’s appearance before a Board of Officers for elimination from military service.As the reason for the recommended action, his commander noted the applicant’smisconduct, unclean habits, habitual shirking, and personality disorder or defect.

11.A DA Form 37 (Report of Proceedings of Board of Officers), dated 4 January 1957,shows the Board recommended the applicant’s elimination from service for misconductwith the issuance of an undesirable discharge.

12.The separation authority’s acceptance of the administrative separation board'srecommendation is not available for review with this case.

13.The applicant was discharged on 11 January 1957, under the provisions of ArmyRegulation 635-208.  The DD Form 214 he was issued shows he was credited with tenmonths and eight days of net service this period and his service was characterized asUOTHC.

14.The applicant provides a letter from his oncologist, who states the applicant isunder his care for his treatment of mature B cell lymphoma.

15.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments. There were no records in Interactive Personnel Electronic RecordsManagement System (iPERMS), the Armed Forces Health Longitudinal TechnologyApplication (AHLTA), and Health Artifacts Image Management Solutions (HAIMS).  Asearch in the VA's Joint Legacy Viewer (JLV) showed the applicant is not serviceconnected and there were no treatment records.  The in-service treatment recordsshowed the applicant sustained a back injury for which he was treated with rest, painmedication and physiotherapy and placed on a temporarily on profile.  The lumbar spinefilm was negative.  The 09Jan1957 exam completed for separation purposes showedthat the applicant was qualified for release from active military service.  Based on theinformation available for review, the back condition did not fail medical retentionstandards.  The back condition diagnosed as Contusion, Lower Back, was not a causeor significant contributing cause of the offenses which led to the applicant’s dischargefrom service.  On 31May1956 the applicant was evaluated by the Mental HygieneRehabilitation Service and found to have no boardable mental health diagnosis.  Hewas diagnosed with Immaturity Reaction.  His disposition was to be returned to duty.There were no treatment records after discharge available for review to support that amental health condition was diagnosed later.  Therefore, in accordance with the 03September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25August 2017, Clarifying Guidance, there is no documentation to support a behavioralhealth diagnosis and thus no diagnosis to consider with respect to mitigation ofmisconduct for the purpose of a discharge upgrade.

16.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After review of the application and all evidence, 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 review of the medical records does not support a mitigating Behavioral Health Condition as the cause for the misconduct leading to his discharge from the Army.  The Board further found limited evidence of other possible mitigating factors that may have resulted in consideration of a characterization upgrade, for example, periods of honorable conduct (personal valorous awards or a completed enlistment).  The Board considered the applicant's statement regarding post-service accomplishments, but found them unsupported with additional documentation or letters of reference for a clemency determination.  Based on a preponderance of evidence, the Board determined that the applicant’s dischargecharacterization 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 (Personnel Separations – Enlisted Personnel), in effect at the time, governed the basic authority for the separation of enlisted personnel.  This regulation provided 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. 
 
3.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge. 
 
4.  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//