ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20180016788 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Report of Separation from Active Duty) * DD Form 458 (Charge Sheet), pages 2 and 3 for additional charges preferred on 15 July 1974 * Four DA Forms 2823 (Sworn Statement) * Transmittal memorandum for additional court-martial charges * Applicant's separation request under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), with applicant's self-authored statement * Chain of command indorsements of applicant's chapter 10 separation request * Narrative Reason for Separation memorandum FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was discharged for the "Good of the Service" so that his mother would be spared the disgrace of seeing her son (the applicant) undergo a trial by court-martial and face the possibly of imprisonment in Leavenworth (apparently referring to the U.S. Disciplinary Barracks, Fort Leavenworth, KS). a. According to his company commander, the applicant was supposed to receive a general discharge. While the applicant confirms he received a general discharge, the character of service was under other than honorable conditions; he asserts his 1 leadership failed to mention the implications of this type of discharge. The applicant believes his leadership lied to him in order to protect the Army's reputation. b. The applicant states he has provided evidence (documents from his official military personnel file) that clearly shows, while he was no angel, the Army was only too willing to throw the applicant away as "used goods"; he argues, in effect, while his chain of command may have separated him for the good of the Army, they never took into account what was good for the applicant. c. The applicant asks the Board to consider that, to the best of his knowledge, the infractions alleged in his court-martial charges are true; however, he believes he was either "drunk or 'spaced-out' on drugs at the time." During this period, he was depressed, self-destructive, and suicidal; he underwent treatment for these conditions while on active duty, but the medical care he received was given was nothing like what one might obtain today. Although the term "PTSD" (post-traumatic stress disorder) was not used in 1974, the symptoms were known even then. d. The applicant's company commander threatened the applicant with a special court-martial, and, as proof of his intent, the commander prepared a charge sheet; the applicant's chain of command then offered him a way out (something similar to a plea agreement, like what is currently in use in the (civilian) legal system). e. The applicant asserts the Army failed him as much as he failed both the Army and himself; they told him, if he did not accept a discharge, he would have to spend the next 30 plus years in Leavenworth. He proposes that, by granting his request for an upgrade, the Army/Board could protect the honor of the officers who were appointed over him, and the applicant would be able to put to rest the lies they told him. 3. The applicant's service records show: a. On 31 July 1973, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. While participating in basic combat training, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for hitting another Soldier in the stomach. During the applicant's advanced individual training (AIT), he accepted NJP on 29 November 1973 for absenting himself without authority (AWOL) from 26 until 28 November 1973 (2 days). The applicant's AIT chain of command subsequently promoted him to private/E-2, effective 1 December 1973. Upon completion of initial training, orders assigned the applicant to Fort Benning, GA, and he arrived on 21 January 1974. b. On 1 April 1974, the applicant accepted NJP for failing to go to two appointed places of duty (Work Call Formation and 1300 Formation); punishment consisted of 30 days in correctional custody, but the imposing officer suspended all but 10 of the 30 days. On 20 May 1974, the applicant's Fort Benning unit reported him as absent without leave (AWOL); on 28 May 1974, the NJP imposing officer vacated the applicant's suspended correctional custody punishment. The applicant returned to military control on 29 May 1974. c. On 11 June 1974, the applicant's commander preferred court-martial charges against the applicant for AWOL from 20 until 29 May 1974 (10 days). On or about 12 June 1974, after consulting with counsel, the applicant requested discharge in-lieu of trial by court-martial under chapter 10, AR 635-200. In his request, he verified that: he understood that the charges preferred against him included maximum punishments of either a bad conduct or dishonorable discharge; he was making this request of his own free will and no one had subjected him to coercion; and counsel had advised him of the implications of his request. The applicant acknowledged he was guilty of the charges and submitted the following statement in his own behalf: (1) The applicant stated he was requesting separation because, prior to entering the Army, he had had a slight drug problem; his drug problem worsened after he came on active duty, in that he started using harder drugs. (2) Although the applicant maintained he had stopped using the harder drugs, he realized he had since become quite irritable; he felt a discharge would be best for both the Army and him. d. On 12 June 1974, the applicant underwent a separation physical; his entries on the Standard Form (SF) 93 (Report of Medical History) show, although the applicant indicated his health was good, he was having a number of medical issues: frequent or severe headaches; dizziness or fainting spells; foot trouble; chronic cough; depression or excessive worry; and nervous trouble. The examining physician noted the following about the applicant's claimed conditions: * Headaches were "something like 'migraines''' * Applicant had had severe colds and had been diagnosed with pneumonia * Cough possibly the result of smoking * Applicant's foot had been unstable for a year; the applicant had an old "chip fracture" that was not been disqualifying * Applicant had many worries; he had been AWOL and was having difficulty adjusting to military routines e. On or about 25 June 1974, an Army physician completed the applicant's SF 88 (Report of Medical Examination). The doctor indicated the applicant was qualified for separation and had no physical or mental defects that would warrant separation through medical channels; the physician specifically stated the applicant had not demonstrated a psychiatric disorder during the medical examination. f. On 15 July 1974, the applicant's commander preferred additional charges, which alleged the applicant had failed to go to his appointed place of duty at the time prescribed on five separate occasions. g. On 9 August 1974, the applicant's company commander recommended approval of the applicant's chapter 10 separation request. The commander stated, in effect, the applicant's service record showed he had accepted NJP on three previous occasions, with a fourth instance being when a suspended punishment was vacated; the applicant was a continual problem who demonstrated an inability to cooperate with his peers, and he frequently failed to follow instructions. In addition, the applicant displayed a negative attitude and proved himself to be consistently unreliable. The commander affirmed the applicant had said he wanted to leave the Army as soon as possible. h. On 16 August 1974, the applicant was seen in the Army Hospital's emergency room due to a "hysterical reaction; hyperventilation." The emergency room physician directed "no isolation; remove to cell block area." (Emphasis added by the physician). i. On 20 August 1974, the separation authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate; in addition, the separation authority ordered the applicant's reduction to private/E-1. j. At some point after 20 August 1974, a mental hygiene specialist (in conjunction with a medical doctor) evaluated the applicant, based upon the request from a doctor from the applicant's supporting Troop Medical Clinic (TMC). The TMC doctor had indicated the applicant had had an acute anxiety reaction and woke up crying. Following the evaluation, the mental hygiene specialist stated that no evidence was found of any significant mental illness, and the specialist noted the applicant had been approved for separation on 20 August 1974. k. DA Form 188 (Extract Copy of Morning Report), dated 3 September 1974, stated the applicant had been arrested and confined by civil authority due to allegations of auto theft and burglary. l. On 6 September 1974, the applicant was discharged under other than honorable conditions. His DD Form 214 shows he completed 11 months, and 20 days of his 3-year enlistment contract, with 64 days of lost time. He was awarded or authorized the National Defense Service Medal and a marksmanship qualification badge. 4. The applicant essentially asserts his leadership misled him as to the type of discharge he would receive; while he acknowledges his misconduct, he states he was likely under the influence of alcohol or drugs at the time. The applicant further contends he suffered from behavioral health issues, which, in effect, the Board should consider as mitigating, when determining his character of service. 5. 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: The applicant contends that his in-service mental health and substance abuse issues were directly responsible for his misconduct. He also states that his misconduct was likely due to undiagnosed Post Traumatic Stress Disorder (PTSD). No hard copy civilian or military medical records were provided for review. Review of both AHLTA and JLV indicate that they contain no content relating to the applicant. Review of the available military personnel records indicate that they are void of mention of any psychiatric diagnosis to include PTSD. Given the lack of sufficient medical documentation, no decision regarding medical mitigation can be made at this time. 6. Pertinent Regulations and Policy a. Per the version of chapter 10, AR 635-200 that was in effect at the time, Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could voluntarily request separation in-lieu of trial by court-martial. According to the Manual for Courts-Martial then in effect, only two violations of Article 86, UCMJ carried punitive discharges as a punishment: AWOL for more than 30 days and AWOL from guard duty with the intent to abandon. Neither failing to go to an appointed place of duty nor 10 days AWOL included a discharge as a maximum punishment. b. 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; 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 c. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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. 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. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally d. In reaching its determination, the Board should also consider the statements and evidence submitted by the applicant, along with his military service record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, his civilian arrest and confinement, and the reason for his separation. The Board considered the separation physical and other medical documents in his records, as well as the review and conclusions of the medical advising official. The Board found insufficient evidence of in- service mitigation to overcome the applicant’s misconduct and he provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. 9/28/2020 CHAIRPERSON 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 military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed the following two UCMJ violations did not include a punitive discharge as an available punishment: Article 86 (AWOL for More Than 3, but No More Than 30 days) and Article 86 (Failing to Go to an Appointed Place of Duty). 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-26b (3) (Reduction Authority and Reasons – Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 5. 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. 6. 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. 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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, 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. 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//