DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 14 December 2020 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , AR20200001332 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings in which Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending the NA Form 13038 dated April 17, 2014 to show in the Service was terminated by entry – “Under Honorable Conditions (General) Discharge” vice “Undesirable Discharge.” 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 1 February 2021. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: X Encl CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20200001332 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge under other than honorable conditions (UOTHC) to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel for the Applicant Memorandum, 9 pages, dated 20 November 2019 * List of Exhibits (Ex) * Ex A –– Letter to the Governor of North Carolina (NC) from [Applicant] * Ex B –– State Prison Commitment, dated 12 September 1952. * Ex C –– Bachelor of Arts Degree, City University of ) * Ex D –– Letter from Assistant Dean J_ Mc_ of University, 14 November 1974 * Ex E –– Documentation pertaining to (Applicant’s] activism in the Native American community with photographs * Ex F –– Employment Verification Letter from D_ R_, University * Ex G –– [Applicant's] Selected Work History * Ex H –– Letters from [Applicant’s] children, B_ A_ and Y_ A_ * Ex I –– Letter of Recommendation from Father W_ S_ * Ex J –– Affidavit of [Applicant], dated March 7, 2019. * Ex K –– Employment Verification Letter from L. L_ of the , dated 2 April 1986 * Ex L –– Photo of [Applicant] on the Post-Dispatch from September October 1986, describing him as the Chairman of the Post's Blood Drive * Ex M –– Borough of Queens Proclamation * Ex P –– Applicant’s Certificate of Military Service 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 Correction of Military Records 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 given an undesirable discharge due to a conviction of second degree burglary in and served 42 months on a work gang for this offense. He requests an upgrade to an honorable discharge because: * he faced racial discrimination and the impaired his ability to function * the punishment he received was too severe by today?s standards * his command abused its authority when it discharged him and decided to give him an inappropriate discharge * his average conduct and efficiency rating/behavior and proficiency marks were good to excellent * under the current standards, he would not have received the type of discharge he received; and he was never visited by a Judge Advocate General's Corps officer and never received an official Army representative 3. Counsel (legal interns) for the applicant states the following: a. Summary of the Veteran’s Goals –– The applicant is requesting his undesirable discharge be upgraded to an honorable discharge because the discharge he received was unjust for reasons explained below. b. Summary of Issues –– The reasons the applicant’s discharge should be upgraded: * As a Native American, he was subjected to racial discrimination and abuse during his service in the U.S. Army from 6 March 1951 to 3 December 1952 * His mistreatment led him to drink alcohol one evening in , which caused his subsequent arrest and punishment in an correctional facility * He was not provided with the adequate legal representation following his arrest and subsequent plea of guilty in state court. * His life as a family man and accomplished professor is inconsistent with his current discharge characterization of undesirable c. Facts –– In March 1951, the applicant voluntarily signed up for the U.S. Army to serve in the Korean War (see Certificate of Military Service). He was assigned to Company L, 504th Airborne Infantry Regiment of the 82nd Airborne Division at Fort Bragg, NC. After training, he was accepted to attend the Fort Benning, GA, Jump (Airborne) School. He graduated from Jump School, became a Rifleman, and later participated in Operation Longhorn, the largest military operation in the U.S. to this day (see Michael Marks, How One Texas Town Fell to Communist Rule in the 1950s). d. Applicant’s Military Experience –– He entered the U.S. Army on 6 March 1951, just three years after President Harry S. Truman abolished racial segregation as a matter of official policy in the Armed Forces through Executive Order 9981 on 26 July 1948 (see generally Office of the Assistant Secretary of Defense for Manpower and Reserve Affairs (Equal Opportunity), Task Force on the Administration of Military Justice in the Armed Forces, Volume II (1972) (document was not provided and is unavailable). Just two years before that Executive Order, on 18 July 1946, President Truman received a letter describing the attack on Isaac Woodard, an African-American World War II veteran who, while still in his military uniform, was pulled off a bus in Batesburg, SC, and brutally beaten, leaving him permanently blind (see DeNeen L. Brown, How Harry S. Truman Went From Being a Racist to Desegregating the Military). Counsels further explained: (1) During Operation Longhorn members of the applicant's company attacked and beat him because of his darker complexion (Ex A). Following the operation, the company stopped in Jackson, MS, and he was charged and fined $110.00 for wearing an unauthorized patch, although he was wearing the correct patch for his unit. His platoon leader knew he was wearing the correct patch but did not come to his defense. When the applicant returned to Fort Bragg, NC, he received a weekend pass. He planned to travel to with friends from the unit. He received a ride and was dropped off at where he purchased a bottle of whiskey and moonshine. Stress and a combination of his experience with racial discrimination and leaving Korea caused him to drink too much on that evening. The applicant was in a new and unfamiliar place when a violent storm started. He sought shelter on a nearby porch; he asserts he never entered the landowner?s home and remained on the porch. While hitchhiking back to camp, he was arrested by a local sheriff and charged with burglary. (2) At the time of the applicant’s arrest, burglary was punishable by death in (see Franklin A. Snyder, Criminal Law –– Burglary ); therefore, his options were limited to pleading guilty or going to trial, where he would face possible execution. He was denied representation by the Army Judge Advocate Generals' Corps and was not permitted to use the money he saved in his Soldier's deposit for private legal representation (Ex A). He was represented by a public defender who advised him to accept a guilty plea and he reluctantly did. He did not want his case tried by a jury plagued by racism in the south during the 1950’s. He was sentenced to 15 to 20 years in prison for finding shelter on a homeowner’s porch (Ex B). He was subjected to working on the chain gang. He did not receive any disciplinary actions against him and was known to be hard-working. After 43 months, his family hired a legal specialist to successfully advocate for his release from prison. The applicant suffered physically and psychologically due to the abhorrent conditions and humiliation of the chain gang. e. Applicant?s Success and Career –– Counsels explained the applicant’s life after serving his sentence: * married his wife and they had three children * obtaining a Bachelor’s Degree in Economics (Ex C), and a Master’s Degree in Business Administration (Ex D) * a proud and well-known activist in the Native American community (Ex E) * his prestigious career as a professor (retired) includes teaching at University (Ex F) and serving as Director of Community Relations for the Post and as a consultant with many outstanding organizations (Ex G) * greatest accomplishment in raising his three children who admire and respect him (Ex H) * remained a devout Catholic (Ex I) * living an honorable life since his 1955 release without so much as a traffic violation f. Argument –– The ABCMR has the power to amend military records when ?necessary to . . . remove an injustice.? The ABCMR can upgrade a discharge when the discharge is no longer serving a useful purpose. Sixty-seven years after discharge, the applicant undesirable discharge characterization no longer serves a useful purpose, especially in light of his exemplary post-service life and accomplished career. In the interests of justice, he is deserving of an upgrade based on his longstanding dedication to his country, his family, his career, and the Native American community. For these reasons, which are described in more depth below, he respectfully request that the ABCMR waive the three-year time limit and upgrade his discharge characterization to honorable. The applicant’s discharge is unjust because he: * was the victim of racial harassment, which led to one bad night that ultimately caused his discharge from service * would not have received a disproportionately harsh punishment if he had engaged in this conduct today (see North Carolina Sentencing Guidelines) * his career since his military service demonstrates that the incident leading to his discharge was an aberration on an otherwise untarnished record of being a law abiding citizen and well-accomplished professor (see Exs J D, K, L, and M) g. Conclusion –– Despite the applicant's experiences, he was able to create a positive and admirable life. Now, as an 87-year-old retired professor who taught at some of the most prestigious colleges in the northeast, his undesirable discharge has been a blemish on his full life of accomplishments. Accordingly, he seeks to upgrade his discharge characterization to honorable. The past sixty-three years paint a much more accurate picture of his character than one night in North Carolina in 1952. He has already received and served a harsh sentence for that one night, yet the stigma of his current discharge continues to sentence him, 67 years later. He respectfully requests that the ABCMR upgrade his discharge characterization to honorable in order to correct an injustice by removing a stain that is inconsistent with an otherwise spotless record. 4. The applicant's military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. On 4 April 2020, ARBA was advised it is believed his records were lost or destroyed in that fire. The National Personnel Records Center was unable to retrieve his separation documents, however, the NPRC did provide a certificate of military service and other documents remaining in a reconstructed record. a. The OSA Form 172 (Review of Discharge or Separation, Army Discharge Review Board (ADRB)) shows: (1) On 6 March 1951, at the age of 19 years old, he was inducted in the Army of the United States (AUS). (2) The basis for his discharge was explained in a Letter from Fort Bragg, NC, Personnel Processing Center to Warden State Prison, Raleigh, NC. It stated the applicant was confined at the institution, convicted on 2 counts of burglary and sentenced to 10 to 15 years on each count; included was the DD Form 214 (Report of Separation) for prisoner's signature and was to be presented to him upon release from confinement. His DA Form 24 (Service Record), which was available at the time showed he had 108 days lost due to confinement. His DD Form 214 (Report of Separation), available at the time, showed 110 days taken for lost time. He was discharged on 3 December 1952, under the provisions of Army Regulation (AR) 615- 366 (Enlisted Personnel Discharge – Misconduct (Fraudulent Entry, AWOL (Absent Without Leave), Desertion, Conviction by Civil Court), Section IV (Conviction by Civil Court). (3) On 2 February 1962, the Board reviewed his case based on the applicant's petition to upgrade his discharge to an honorable discharge. He stated he requested an honorable discharge for the purpose of serving the U.S. to the utmost. He had the benefit of higher education; he was enrolled in college. In the event the U.S. was involved in war he was qualified to serve with a commitment; he wished to do so. The Board denied his petition. b. The ADRB Vote Sheet stated the Board found that the applicant was properly and equitably discharged. He completed one year and 9 months of service with no record of disciplinary punishment but lost 110 days resulting from one period of absence without leave due to confinement in the hands of civil authorities. His records showed that he was administratively discharged from the Army subsequent to conviction in civil court on two counts of burglary and sentenced to be imprisoned in the State Prison, Raleigh, NC for ten to fifteen years. The ADRB notified the applicant of the denial by letter, dated 23 February 1962. c. His NA Form 13038 (Certification of Military Service), dated 17 April 2014, shows he was a member of the Army of the United States from 6 March 1951 to 3 December 1952 and received an undesirable discharge. 5. The applicant provided: a. Ex A –– Letter to the Governor from [Applicant], the applicant explained how he was inducted into the Army, his experiences in basic training and Jump School, including the circumstances regarding a cold he contracted while in training. He described how he was exposed to racism while in the service and how that racism led to his depression and subsequently to his arrest. He detailed the events of the day he was arrested. He was allowed one phone call and he called the company and requested official representation. He was not provided with military counsel. He had $250.00 in his Soldier's deposit, the Army Bank, and asked to have the funds sent to him to cover his legal representation. He was in county jail for 30 days and given a court appointed attorney, B_ W_ Esquire. The attorney reached out to his parents but they did not have the money to help him. b. Ex B –– State Prison Commitment, dated 12 September 1952, shows in September 1952, the applicant was tried in the Superior Court, State . He plead guilty to second-degree burglary. He was sentenced to not less than 10 years and not more than 15 years imprisonment. c. Ex C –– Bachelor of Arts Degree, City University shows he earned his degree. d. Ex D –– Letter from Assistant Dean J_ Mc_ of University, 14 November 1974 shows on 7 August 1974, he earned his Masters Degree in Business Administration. He was cited for distinguished achievement, one of the top three students, in the courses: the ecology of business enterprise, managerial accounting, international dimension of business, and seminar in marketing and sales management. e. Ex E –– Documentation pertaining to (Applicant’s] activism in the Native American community shows: (1) An April 1992 Article in the Cherokee Advocate ?American Indians in New York celebrate Year of the Indian, 1992? with a photo. The article indicated Indians from across the nation would be celebrating 1992 as the Year of the Indian due to a proclamation signed by President George Bush. It mentions the applicant as the troupe founder of the based inter-tribal dance troupe. The applicant organized the troupe two years prior to help make community people in that area of the state more aware of Native Americans, their culture and their history. (2) The applicant's biography, with a photo of a man in Native American attire. The biography shows his name followed by ?The Eagle Among Us.? It listed his birth place, education, occupations, affiliations, interests, his work with the dance troupe, and indicated that his great, great grandfather was a chief. f. Ex F –– Employment Verification Letter from D_ R_, University shows the applicants dates of employment as 1 September 1977 to 30 June 1979 as an assistant professor in marking. g. Ex G –– [Applicant's] Selected Work History shows his career included: * Manager, Marketing Planning, Publishing Company 1973-1978 * Assistant Professor in Economics, Marketing, and Management (corporate sector) * Director of Community Affairs for the , 1985-1990 * Director of Marketing, Affective Marketing Management, Incorporated, 1990-2001 * Associate Education/Employment Specialist, State University 1993-1998 * Marketing Management Consultant 1989 to Present * Institutional Affiliations –– University, University, University of , University, and University * Professional Affiliations –– American Marketing Association, Public Relations Society of America, Public Relations Society, American Management Association, and Chamber of Commerce h. Ex H –– Two Letters from [Applicant’s] children, B_ A_ and Y_ A_, attested to the applicants character as a father and a mentor. i. Ex I –– Letter of Recommendation from Father W_ S_ attested to the applicants character as a member of the church and how his family was active members of the church, the school, and community. j. Ex J –– Affidavit of [Applicant], dated 7 March 2019, shows the applicant swore and declared to the best of his knowledge and belief to statements regarding his residence; the racism he endured while in the service, including when he was beaten my members of his company; no law violations after his release from prison; and his education and distinguished achievement were true, correct, and complete: k. Ex K –– Employment Verification Letter from L. L_ of the , dated 2 April 1986, shows that Mr. L_ swore that the applicant was employed by the New York Post as Director of Special Projects. l. Ex L –– Photo of [Applicant] on the Post-Dispatch from September-October 1986 issue, described the applicant as the Chairman of the Post's Blood Drive m. Ex M –– Proclamation, shows on 17 November1992, the , proclaimed 19 November 1992 as Native American Culture and Heritage Day , in recognition of the proud legacy of all Native Americans residing in their . 6. AR 615-366 states Soldiers will be discharged, if during their term of service have been finally convicted by a civil court for a criminal offense, or adjudged a youthful offender and sentenced to death imprisonment for a term exceeding one year. An individual who is to be discharged under these provisions will be given an Undesirable Discharge. 7. AR 615-360 provides a member’s service will be characterized as honorable when it has been determined that he merits an honorable discharge under the following standards: * His character ratings of at least ?Very Good,? except that ratings of ?unknown? * Has efficiency ratings of at least ?Excellent,? except that ratings of ?unknown? * Has not been convicted by a general court-martial * Has not been convicted more than once by a special court-martial. 8. On 3 September 2014 the Secretary of Defense directed the Service Discharge Boards and Service Boards for correction of military records to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 9. On 25 August 2017 the Undersecretary of Defense, 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 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. 11. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and made the following findings and recommendations: There is insufficient documentation to support the applicant’s request. However, if applicable documentation becomes available, the medical advisor is glad to review the case again. Active duty hard copy medical records were unavailable; it is reported his files were burned in the 1973 fire. The applicant is not service connected and Department of Veterans Affairs' records are void of contact. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered counsel's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board noted that his case was reviewed by the ADRB when his service records were still available, and that board determined he had been treated equitably. The available records confirm that his discharge and the characterization of his service were in accordance with the regulations in effect at the time. The Board found insufficient evidence of in-service mitigating factors in support of a favorable clemency determination. The Board commends the applicant for his successful post-service life, but found his accomplishments insufficient to support a favorable 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. 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. 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 military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (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 (AR) 615-366 (Enlisted Personnel Discharge –– Misconduct (Fraudulent Entry, AWOL (Absent Without Leave), Section IV (Conviction by Civil Court)), in effect at the time, provided discharge authorities will discharge individuals who, during their term of service, have been finally convicted by a civil court for a criminal offense, or adjudged a youthful offender and sentenced to death imprisonment for a term exceeding one year. An individual who is to be discharged under these provisions will be given an Undesirable Discharge. 3. AR 615-360 (Personnel Separations - Enlisted Personnel) in effect at the time, set forth the basic policy for the separation of enlisted personnel. It states: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. A member’s service will be characterized as honorable when it has been determined that he merits an honorable discharge under the following standards: * His character ratings of at least ?Very Good,? except that ratings of ?unknown? * Has efficiency ratings of at least ?Excellent,? except that ratings of ?unknown? * Has not been convicted by a general court-martial * Has not been convicted more than once by a special court-martial b. A general discharge is a separation from the Army for those who did not qualify for an honorable discharge. 4. AR 635-200 (Personnel Separations –– Active Duty Enlisted Administrative Separations) currently in effect, set forth the basic authority for the separation of enlisted personnel. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 14 (Separation for Misconduct), Section II (Conviction by Civil Court), state a Soldier me be considered for discharge when initially convicted by civil authorities, or when action is taken tantamount to a finding of guilty, if one of the following conditions is present: A punitive discharge authorized for the same or a closely related offense under the Manual for Courts-Martial 2002, as amended and/or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. d. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 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 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//