IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180009136 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions promulgated in Docket Numbers AC83-10470 and AR2015004214, on 1 February 1984 and 23 August 2016, respectively. Specifically, he requests his bad conduct discharge (BCD) 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 Provisions of Title 10, U.S. Code, Section 1552), dated 9 June 2018 * four pages of service medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 August 1982 * ABCMR decisional documents AC83-10470 and AR2015004214 * Memorandum from the Under Secretary of Defense (Personnel and Readiness), dated 25 August 2017 (Kurta Memorandum) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous considerations of the applicant's case by the ABCMR in Docket Numbers AC83-10470 and AR2015004214, on 1 February 1984 and 23 August 2016, respectively. 2. Title 10, USC, Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this section, no matter when filed, shall be reconsidered by a Board under this section if supported by materials not previously presented to or considered by the Board in making such determination. 3. The applicant defers to counsel. Counsel states: a. The application is based on the liberalized provisions granted in the 25 August 2017 Kurta Memorandum, which were not available at the time of the applicant's prior reconsideration. b. The applicant has suffered from cognitive limitations throughout his life and was classified as mentally retarded with borderline intellectual functioning in 1990. c. The applicant was diagnosed with undifferentiated schizophrenia while incarcerated pursuant to his court-martial. d. An advisory opinion received by the Board in connection with the prior reconsideration request stated it was more likely that not that at the time of the misconduct, he met the criteria for a BH [behavioral health] condition that might have mitigated his behavior. e. Clemency is appropriate under the clarifying guidance issued by the Department of Defense on 25 August 2017, setting forth a four-step evaluation for the Board to follow when evaluating an applicant's request for a change to their characterization of service based on their claim that a mental health condition contributed to their misconduct. f. Mental retardation (now referred to as "Intellectual Disability") limits an individual's ability to communicate, interact with others, and care for oneself. Service treatment records show that applicant was brought in for a mental health evaluation almost immediately after the incident and a consultation was ordered from professional staff. g. Since the service treatment records show that his command was aware there was an issue related to the applicant's mental illness at the time of his misconduct, the Manual for Courts-Martial required an inquiry into his mental status. 4. The applicant enlisted in the U.S. Army Reserve (USAR) on 29 December 1977. The record indicates he was ordered to involuntary active duty on 13 November 1979 but failed to report until 20 February 1980. 5. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 6 February 1978, for disobeying a lawful order from a commissioned officer, on or about 30 January 1978 * on 4 November 1980, for using disrespectful language toward a commissioned officer, on or about 22 October 1980 6. Before a general court-martial on or about 16 May 1981, and in accordance with his pleas, the applicant was convicted of assaulting a fellow Soldier by cutting him on the neck and face with a sharp instrument, thereby with intent to inflict grievous bodily harm. The court sentenced him to separation from service with a BCD, forfeiture of all pay and allowances, reduction to the grade E-1, and confinement for a period of two years and six months. A modified sentence was approved on 7 July 1981 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 7. The U.S. Army Court of Military Review affirmed the approved findings and sentence on 22 March 1982. The U.S. Court of Military Appeals denied his petition for review. 8. General Court-Martial Order 524, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS on 16 July 1982, noted that the applicant's sentence had been affirmed and ordered the BCD to be duly executed. 9. The applicant was discharged on 10 August 1982. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as a result of a court-martial, and his service characterization was bad conduct. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 with one year and one month of active service and 219 days of lost time. 10. The ABCMR denied the applicant's request for an upgrade on 1 February 1984. At that time, he contended he was involuntarily ordered to active duty and he never received special orders placing him on active duty; that he was actually the victim, in that the man he cut had stolen his property and had provoked a fight while the applicant had his hand in a cast and his arm in a sling. 11. The ABCMR denied the applicant's request for an upgrade on 23 August 2016. In that request: a. The applicant raised the issue that at the time of enlistment, he was suffering from mental health issues; however, he was erroneously allowed to enlist. b. He was granted an enlistment waiver because he could not pass the entrance examination due to dyslexia. He developed brain issues while in the service that only compounded the situation. He was not receiving pay so he could not support his kids and the stress pushed him out of character. c. He sustained a series of body and head injuries and despite reporting the injuries to the appropriate staff, he did not receive the help and support he needed to properly heal. He was given alcohol and cocaine to reduce his pain because he was not able to receive pain medication. When he visited sick call, he was told that his records were not readily available and he could not receive any help. d. The applicant provided approximately 70 pages of military and civilian medical records. 12. During the processing of his 23 August 2016 review, a medical advisory opinion was obtained from a staff psychologist with the Office of The Surgeon General (OTSG). The advisory official opined: a. The applicant requested that the Board upgrade his discharge. OTSG was asked to determine if there is a nexus between the information/diagnoses contained in that documentation and the misconduct that resulted in the applicant's discharge. This opinion is based solely on the information provided by the Board as the Department of Defense electronic medical record was not in use at the time of his service. b. The applicant reported that he had mental health issues at the time of his enlistment and should not have been accessed. He stated that during service, he was struck by brass knuckles in the head, which caused head injuries leading to mental stress, adding that he was not in his right state of mind at the time of his misconduct, aggravated assault with a knife. He also observed that during his two-and-a-half-year confinement, he was not being paid and was unable to support his family. c. A disability determination, dated 10 May 1990, indicates a primary diagnosis of fracture of the thumbs and a secondary diagnosis of Mental Retardation. Psychological testing administered on 1 May 1990 revealed the applicant had obtained a Full Score of 72 on the Wechsler Adult Intelligence Scale-Revised, placing him in the border line range of intellectual functioning. A psychiatric consult, dated 3 January 1983, from an unidentified hospital observed that he had been confined for nearly two years for an assault. He was diagnosed with Schizophrenia, Undifferentiated Type and prescribed Haldol and Cogentin. The provider notes that a previously administered Minnesota Multiphasic Personality Inventory (MMPI) showed extremely high depression (100) and schizophrenia (95) scores. He also makes reference to previous involvement in psychiatric treatment, of which there is no evidence in the file. d. Records indicate the applicant has received vocational rehabilitation and support through the Delaware Department of Labor, beginning in 1983 and has been followed by the RHO, a national human services nonprofit supporting people of all abilities. RHO documentation states that the applicant has been diagnosed with a mental illness that has rendered him disabled. A Psychiatrist Annual Review/Assessment, dated 16 February 2015, shows he was diagnosed with Major Depressive Disorder, recurrent, with psychosis. e. Despite the absence of behavioral health (BH) records during the applicant's military service, the severity of his subsequent impairment and his need for continued supportive services suggests that it is more likely than not that at the time of the misconduct, he met the criteria for a BH condition that might have mitigated his behavior. 13. The applicant provides copies of treatment records for treatment on the indicated dates: * on 26 March 1981, for referral to the Community Mental Health Activity * on 8 April 1981, Correctional Dispensary record, showing recent scaring on his right thigh * on 22 April 1981, Correctional Dispensary record requesting a mental health evaluation * on 12 May 1981 for rescheduling of some type of surgery * on 15 December 1982, a mental health consultation diagnosed the applicant with an undifferentiated Schizophrenic Disorder 14. 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. 15. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. Of note, the applicant had a 2016 advisory with no new medical information submitted with this advisory. While liberal consideration guidance was applied, the applicant’s diagnostic picture is unclear. Although one in-service record indicated Schizophrenia, it appeared this was based on self-report and misinterpreted psychological testing. Specifically, the scores referenced are above the cut off for validity. Moreover, VA documentation since then indicates Organic Mood Disorder and Substance Abuse; Substance Abuse can present as psychosis. Additionally, civilian records note MDD with psychosis and Mental Retardation. Even if the prior diagnoses of Schizophrenia or MDD with psychosis is taken at face value, there is no indication the applicant was experiencing a psychotic episode during the attack. Rather, the referenced statements indicate planning, time in-between events, and other elements that are uncharacteristic of a psychotic episode. Additionally, assault with a weapon resulting in bodily harm is not a sequel or progression of Mental Retardation. As such, irrespective of a psychiatric diagnosis in-service, it is less likely than not the applicant’s misconduct was due to a behavioral health condition. Accordingly, an upgrade is not supported from a behavioral health standpoint. b. Due to the period of service, active duty electronic medical records are void. Some active duty hard copy medical records were available. A March 1981 note indicated a behavioral health consult was submitted, consult results unavailable. A January 1983 incarceration record indicated the applicant reported insomnia and anxiety and history of psychiatric medication. The psychological assessment noted contains scores invalidating the measure; they are above scores obtained by institutionalized patients. The provider diagnosed Schizophrenia Disorder. c. The applicant is not service connected. In January 1998, the applicant was admitted for suicidal ideation and hallucinations. A prior VA substance treatment program was noted in 1993. The applicant reported a history of violent behaviors since childhood with disciplinary issues in school and several altercations in the Army. The applicant reported an extensive history of physical abuse, sexual molestation at age 5, and exposure to drugs. The applicant was assessed for psychotic disorders, but discharged with diagnoses of Organic Mood Disorder and Substance Abuse, Alcohol/Cocaine. In June 1998, the applicant was readmitted for depression, suicidality, and paranoia. However, he was using drugs making it difficult to determine a psychotic disorder rather than drug induced. He was discharged with diagnoses of Organic Mood Disorder with Depression and Substance Abuse, Alcohol/Cocaine. The applicant has not returned. d. In reviewing his 2016 ARBA case, the applicant included one page of a May 1990 psychological assessment which places his intellectual capacity in the Borderline range of functioning. A February 2015 note lists Major Depressive Disorder (MDD) with Psychosis. 16. The Board should consider the applicant's petition, his service record, the prior OTSG advisory opinion, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is 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 did not find sufficient evidence to grant relief. The Board agreed with the ARBA Medical Advisory opinion that due to the nature and severity of the charges, the serious misconduct could not be mitigated. 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. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence b. Paragraph 2–15 (Reconsideration of ABCMR decisions) provides that an applicant may request the reconsideration of an ABCMR decision if the ABCMR has not previously reconsidered the matter and if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that were not in the record at the time of the ABCMR’s prior consideration. If no new evidence is found, the ABCMR staff will return the application to the applicant without action. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier will be given a BCD only pursuant to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 4. 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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. 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// ABCMR Record of Proceedings (cont) AR20180009136 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180009136 8 ABCMR Record of Proceedings (cont) AR20180009136 7