ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20180016709 APPLICANT REQUESTS: in effect, .upgrade of his discharge under other than honorable conditions (UOTHC) .correction of his narrative reason for discharge to reflect mental impairment .personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .two DD Forms 149 (Application for Correction of Military Record) .DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States) .two self-authored statements .medical records 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 Correctionof Military Records (ABCMR) conducted a substantive review of this case anddetermined it is in the interest of justice to excuse the applicant's failure to timely file. 2.The applicant states: a.His discharge should be upgraded because he did not undergo a mentalhealth assessment and he was mentally impaired at the time the crime was committed, during the disciplinary actions and at the time of his discharge. The Army failed to take under advisement the signs and behavior associated with mental health disorders. He has provided medical documentation from a psychiatrist showing his mental health diagnosis. b.His co-defendants, Private T____, Private E___, and Private W___ alltestified under oath that every defendant was led by mental impairment and they did not receive bad conduct discharges (BCD) as he did. Although he was not the sole person involved in the crime, he was made to be the “whipping boy” so the other accomplices could continue to serve without shame or embarrassment. c.Because of his inexperience with alcohol and the mindset of being invincible,which he believed to be true, he cast aside sound judgment and replaced it with a drunken stupor. On a few other occasions he violated the Uniform Code of Military Justice (UCMJ), but each incident was tied to the excessive drinking of alcohol. d.He thought Counsel had his best interests at heart and it was based uponCounsel’s advice that he agreed to a BCD. Certain motions pertaining to mental disorder or cognitive derangement were either not suggested by his appointed defense counsel or they were denied. The recorded transcript of the proceedings will show that the four Soldiers allegedly involved in the case were intoxicated beyond a legal limit and that was the core reason why the instances occurred. e.He was instructed by Counsel to accept a plea agreed upon by the Army andthe defense representative in terms of punishment. His Counsel relayed to him that the punishment for the incident was to be a 90-day confinement in a military institution, a forfeiture of $200 per pay period for 3 months, and a general discharge. Because his defense counsel assured him that to not accept this offer would be ludicrous, he accepted the presented offer. f.He must admit his genuine disappointment at his spontaneous andembarrassing actions, that shamed the uniform he wore and disgraced his country. His actions brought a cloud of despair that ranged over his life since April 1977 and remains until this day. He is to this very day ashamed of his behavior which stemmed from his consumption of alcohol and led to more than one UCMJ violation. He is not suggesting he should not be held accountable for his actions on those fateful days. His is however requesting that he receive equal treatment with his co-defendants. Why was he the only one to receive a harsh sentence concluding with a dishonorable discharge and not be given the chance to correct his life and serve his country as the other three defendants were? e.Any injustice, no matter how long ago it transpired, ought to be given an equalopportunity to be reexamined for correction. Whether he deserves to be forgiven is not his request, but he simply hopes to be relieved of the status of “whipping boy” for the four defendants and seeks nothing above what was provided to the other three servicemen involved who were allowed recompense for the identical charges. He has served his punishment and would like his current discharge removed. 3.The applicant enlisted in the Regular Army on 18 January 1977. 4.A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), shows heaccepted nonjudicial punishment (NJP) on 4 February 1977, for going from hisappointed place of duty without authority on 4 February 1977. 5.A memorandum from his commander, dated 18 May 1977, shows the applicant’saccess to classified information was suspended on 28 April 1977, based on aMilitary Police Report, dated 24 April 1977, showing he allegedly committed robberyof a taxi cab driver on 22 April 1977. 6.Further memoranda, likewise dated 18 May 1977, show the CriminalInvestigation Command (CID) had conducted an investigation and the applicant waspending a general court-martial on 7 July 1977. Neither the CID investigation northe subsequent DD form 458 (Charge Sheet) are in the applicant’s available recordsfor review. 7.On 1 June 1977, the applicant voluntarily requested discharge under theprovisions of chapter 10, Army Regulation 635-200 (Personnel Separations –Enlisted Personnel) for the good of the service, in lieu of court-martial. Heacknowledged having been afforded the opportunity to consult with appointedcounsel prior to voluntarily requesting discharge and having been advised of hisright, the elements of the offenses with which he was charged, and the possibleeffects of a UOTHC discharge. He stated he hoped the Army would give him achance at a new start and he was positive this type of incident would not happenagain. He stated he was honestly sorry for what he did. 8.A DA Form 2627, shows he again accepted NJP on 2 June 1977, for breakingrestriction to the limits of Headquarters and Headquarters Battalion, 3rd Air DefenseArtillery Training Battalion, Building 2450 on 1 June 1977. 9.On 10 June 1977, his immediate commander recommended disapproval of theapplicant’s request for discharge under the provisions of chapter 10, ArmyRegulation 635-200. On 10 June 1977, his intermediate commander likewiserecommended disapproval of the applicant’s request, stating the applicant was oneof four Soldiers pending court-martial for assault and robbery on 22 and 23 April1977. To discharge the applicant prior to the court-martial would be prejudicial tothe morale and discipline of the organization and establish a precedent andinfluence the courts-martial of the remaining servicemen. 10.On 14 June 1977, the approval authority disapproved the applicant’s request forvoluntary discharge under the provisions of chapter 10, Army Regulation 635-200. 11.A DA Form 2627, shows he again accepted NJP on 18 July 1977, for absentinghimself from his unit without authority on 1 July 1977 and remaining so absent until 5 July 1977 12.A memorandum from his immediate commander, dated 22 July 1977, shows therevocation of the applicant’s secret security clearance was recommended based onthe following: a.On 22 and again on 23 April 1977, the applicant took part in the robberies oftwo taxi cab drivers on Fort Bliss, TX. b.He was tried and found guilty by special court-martial on 7 and 20 July 1977of two counts of robbery and sentenced to forfeiture of $200.00 pay per month for 3 months, confinement at hard labor for 3 months, and discharge from the service with a BCD. 13.A copy of the special court-martial orders are not in the applicant’s availablerecords for review. 14.A U.S. Army Judiciary, Office of the Judge Advocate General memorandum,dated 29 September 1978, shows the U.S. Court of Military Appeals denied theapplicant’s petition for a grant of review in the case of the United States against theapplicant and would be informed of the denial by his appellate defense counsel. 15.Headquarters U.S. Army Training Center and Fort Dix Special Court-MartialOrder number 62, dated 6 October 1978, shows the applicant’s sentence to a BCD,confinement at hard labor for 3 months, and forfeiture of $200.00 pay per month for3 months, adjudged on 20 July 1977, as promulgated in Special Court-Martial OrderNumber 5, U.S. Army White Sands Missile Range, NM, dated 4 October 1977, wasaffirmed and all provisions having been complied with, the sentence would be dulyexecuted. That portion of the sentence pertaining to confinement was alreadyserved. 16.The applicant’s DD Form 214 shows he was discharged on 15 February 1979under the provisions of Army Regulation 635-200, chapter 11, pursuant to anapproved sentence by a court-martial. He was credited with 1 year, 9 months, and28 days of net active service with 92 days of lost time. His service wascharacterized as UOTHC. 17.There is no evidence of record the applicant was diagnosed with or treated for amental health condition at the time of his service. 18.The applicant applied to the Army Discharge Review Board (ADRB), requestinga change to the type and nature of his discharge. On 24 August 1981, he wasadvised the ADRB denied his request, having found he was properly discharged. 19.The applicant provided a copy of an initial psychiatric evaluation, dated 15 December 2018, which shows he has a diagnosis of schizoaffective disorder. 20.On 10 October 2019, the Army Review Boards (ARBA) psychologist providedan advisory opinion, which states the applicant provided medical documentationindicating he was diagnosed with schizoaffective disorder on 15 December 2018.There is documentation to support the existence of a behavioral health condition atthe time of his discharge, but the available records indicate the applicant met medical retention standards with respect to behavioral health in accordance with Army Regulation 40-501 (Standards of Medical Fitness). His behavioral health condition is not a mitigating factor for the misconduct of assault and robbery that resulted in his discharge. 21.On 18 October 2019, the applicant was provided a copy of the advisory opinionand given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim to have had psychiatric problems and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by psychiatric problems. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 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 orinjustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the three-year statute of limitations if the ABCMRdetermines it would be in the interest of justice to do so. 2.On 25 August 2017, the Office of the Undersecretary of Defense for Personneland Readiness issued clarifying guidance for the Secretary of Defense Directive toDRBs and BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole or in part to: mental health conditions, including PTSD,traumatic brain injury, sexual assault, or sexual harassment. Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the applicationfor relief is based, in whole or in part, on those conditions or experiences. Theguidance further describes evidence sources and criteria and requires boards toconsider the conditions or experiences presented in evidence as potential mitigationfor misconduct that led to the discharge. 3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from acriminal sentence. BCM/NRs may grant clemency regardless of the court-martialforum. However, the guidance applies to more than clemency from a sentencing ina court-martial; it also applies to any other corrections, including changes in adischarge, which may be warranted on equity or relief from injustice grounds. Thisguidance does not mandate relief, but rather provides standards and principles toguide BCM/NRs in application of their equitable relief authority. In determiningwhether to grant relief on the basis of equity, injustice, or clemency grounds,BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworntestimony, policy changes, relative severity of misconduct, mental and behavioralhealth conditions, official governmental acknowledgement that a relevant error orinjustice was committed, and uniformity of punishment. Changes to the narrativereason for discharge and/or an upgraded character of service granted solely onequity, injustice, or clemency grounds normally should not result in separation pay,retroactive promotions, and payment of past medical expenses or similar benefitsthat might have been received if the original discharge had been for the revisedreason or had the upgraded service characterization. 4.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effectat the time, set 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. c. Chapter 11, in effect at the time, provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. NOTHING FOLLOWS