IN THE CASE OF: BOARD DATE: 26 October 2021 DOCKET NUMBER: AR20200010310 APPLICANT REQUESTS: upgrade of his undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293(Application for the Army Discharge Review Board) * Nine letters of support FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (U.S. Code), 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 is seeking this upgrade so he can get medical care and benefits; in support of his request, he submits letters of support from family and friends. a. The applicant's eldest daughter (Ms. C__ S__) states many members of the family have served in all branches of the military; unfortunately, her father was unable to complete a career in the Army, but he nonetheless maintains his tenure was rewarding. Ms. C__ S__ affirms, when her father enlisted in 1962, his community was going through difficult times; the applicant's hometown was experiencing riots, and persons of color were unable to find employment. In addition, the applicant had recently married, and his wife (Ms. C__ S__'s mother) suffered a miscarriage while still having to care for two young daughters. The applicant wanted to both serve his country and provide for his family, but instead of seeking guidance and support, he acted out; although the applicant tried his best to be supportive, he went about things the wrong way. b. In seven additional letters of support, members of the applicant's family and the applicant's friends all describe the applicant has a caring and devoted father, son, brother, and uncle; additionally, he has shown himself to be a person who is willing to go the extra mile for his family and community. 3. The applicant's service records show: a. On 16 April 1962, a U.S. Army Recruiting Station requested a waiver for the applicant to enlist into the Regular Army. (1) Under item 3 (Nature of Offenses) of the request, the recruiting station wrote, "On 18 May 1955, applicant and two of his friends were standing in front of a store and a smaller boy came by and they told him that, if he did not give them money, that they would beat him up. The police were called and the boys were charged with extortion. On 30 May 1960, applicant and two of his friends had a toy pistol and showed it to the paperboy and took his money, the paperboy later identified the boys and they were charged with Armed Robbery." For the applicant's first offense, the sentence was probation for 1 year; for his second offense, the court sent the applicant to a home for boys until January 1961, after which the court placed him on probation until he reached 17 years of age. (2) On 26 April 1962, the County Juvenile Court wrote that the applicant was one of those unusual cases the court periodically saw, in that the applicant came from a good home and received good supervision; in addition, he had an easygoing, likeable personality. The court continued, "Frankly, we could never determine explicitly the cause for his delinquent acts. Our assumption was that he is highly susceptible to suggestions and was stimulated possibly unconsciously by his parents or through viewing TV programs. Too, he did appear to be overly ambitious to acquire things and to get ahead. His reasoning in this was immature. Our prognosis for the boy's present and future adjustment is favorable." (3) On 2 May 1962, Fifth Army Headquarters approved a moral waiver for the applicant's enlistment. b. On 7 May 1962, after obtaining his parents' permission, the applicant enlisted into the Regular Army for 3 years; he was 17 years old. Orders assigned the applicant to Fort Knox, KY for basic combat training, and, on 27 July 1962, orders transferred the applicant to Fort Sam Houston, TX for advanced individual training (AIT) in military occupational specialty (MOS) 911.10 (Medical Specialist). While in AIT, the applicant's leadership promoted him to private (PV2)/E-2. c. On 18 October 1962, the applicant graduated from AIT, and orders transferred him to Fort Benning, GA for airborne training. On 20 November 1962, following the award of the Parachutist Badge, orders reassigned the applicant to Fort Campbell, KY, and he arrived at his unit, on 23 November 1962. Effective 10 January 1963, the applicant's Fort Campbell leadership promoted him to private first class (PFC)/E-3. The applicant's DA Form 24 (Service Record) indicates, for the period November 1962 until June 1963, the applicant's leadership rated his conduct and efficiency as "Excellent." d. On 13 June 1963, orders honorably discharged the applicant so he could immediately reenlist. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 1 month, and 7 days of his 3-year enlistment contract; item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the Parachutist Badge and a marksmanship qualification badge. e. On 14 June 1963, the applicant reenlisted for 3 years; as part of his reenlistment, the applicant elected to change his MOS and undergo training in MOS 295.1 (Electrical Instrument Repairer). Orders subsequently reassigned the applicant to Fort Gordon, GA for MOS 295.1 training, and he arrived on 5 July 1963. f. On 29 July 1963, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), after the applicant used his fist to strike a fellow Soldier in the head. The applicant's battalion commander imposed the following punishment: suspended reduction to PV2 and a forfeiture of $25 per month for 2 months. However, on 12 September 1963, the battalion commander vacated the suspended reduction; the applicant's service record does not explain the reason for the battalion commander's action. g. On 20 September 1963, the applicant accepted NJP for having been absent without leave (AWOL) from 14 until 15 September 1963 (1 day). On 23 September 1963, the applicant accepted NJP for failing to report to class. h. On 20 November 1963, consistent with the applicant's plea, a special court-martial convicted the applicant of having been AWOL from 4 until 19 October 1963 (15 days). The court sentenced the applicant to 6 months' confinement and forfeiture of $25 per month for 6 months. On 21 November 1963, the special court-martial convening authority approved the sentence and ordered its execution. h. On 12 December 1963, a psychiatrist from Fort Gordon's Mental Hygiene Consultation Service provided a psychiatric evaluation of the applicant while the applicant in the Post Stockade. The psychiatrist recommended the applicant's separation, based on the following: (1) "The diagnosis was found to be: (3204) Antisocial personality, chronic, moderate; manifested by several impulsive episodes of violating military rules and regulations without apparent benefit from military corrective measures, impaired judgment and insight, resentment toward authority and direction, tendency to manipulate his environment for his own benefit, desire to continue on active duty seems sincere at present but his motivation is likely to dwindle due to anticipated financial problems since he has been fined, reduced in grade, and must support his wife with three children." (2) "Stress: Undetermined." (3) "Predisposition: Marked; lack of proper guidance from parents, defective scholastic and social adjustment, numerous episodes of antisocial behavior and juvenile delinquent acts with apparent improvement within the past two years." (4) "Impairment for further military service: Marked; this character structure appears deeply ingrained and beyond the scope of rehabilitative efforts in a military environment." (5) "The above-named individual has no disqualifying mental defects sufficient to warrant disposition through medical channels." i. On 22 December 1963, the applicant's company commander initiated separation action, under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness). The basis for this action was "frequent incidents of a discreditable nature with military authorities." The commander wrote, "several attempts have been made to rehabilitate this EM (enlisted member) by the 1SG (first sergeant), commanding officer, and mental hygiene personnel." "EM lacks the proper attitude for a Soldier in the Army. This EM's behavior is continued disrespect for his subordinates and superiors." j. On 23 December 1963, after his company commander provided counsel, the applicant affirmed his commander had made military counsel available, and the applicant had elected to waive his right to counsel. In addition, the applicant waived his rights to a hearing before a board of officers, and he chose not to submit statements in his own behalf. k. Between 24 December 1963 and 8 January 1964, the applicant's leadership submitted the following statements in support of the applicant's separation. (1) The applicant's company commander stated the applicant arrived at the unit in July 1963, and records showed the leadership had punished him three times via NJP. The former commander had counseled the applicant on numerous occasions (in the current commander's presence), but it was evident that the counselings had no effect, because the applicant continued with his irresponsible attitude. As of the date of the 2LT's statement, the applicant was in confinement. (2) The 1SG wrote the applicant was a constant source of trouble, and he had lost many school days due to investigations by CID (U.S. Army Criminal Investigation Command), illness, and AWOL. Although all of his supervisors had counseled the applicant, all efforts had been to no avail; in the 1SG's opinion, the applicant "has never been of any benefit to the Army." "I believe to all interested parties that it would be of great benefit to discharge [applicant]." (3) A Department of the Army Civilian stated, during the short time the applicant attended class, he was a below average student. The accident that caused him to fracture his arm was instrumental in holding the applicant back. The fact the applicant was in confinement indicated he would not be a benefit to the Army, and certainly not an individual to whom the responsibilities of an Electrical Instrument Repairman should be entrusted. (4) Specialist Five F__ S__, instructor, stated the applicant was "very detrimental to the operation of the classroom. He was continually asleep in class and further created administrative problems by having incorrect SESS Forms 14 to cover his frequent absences." l. On 15 January 1964, the separation authority approved the commander's separation recommendation and directed the applicant's undesirable discharge; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. m. On 21 January 1964, special court-martial orders announced the remission of the unexecuted portion of the applicant's court-martial sentence. n. On 23 January 1964, orders discharged the applicant under other than honorable conditions. His DD Form 214 shows he was discharged under the provisions of AR 635- 208 with an under other than honorable conditions discharge. He completed 6 months and 24 days of his 3-year reenlistment contract, with 16 days of lost time. He was assigned SPN (Separation Program Number) was "28B" (Involved in Frequent Incidents of a Discreditable Nature with Civil or Military Authorities). 4. The applicant requests the upgrade of his character of service so he can obtain healthcare and other benefits. a. During the applicant's era of service, commanders could separate Soldiers under the provisions of AR 635-208 when the Soldier was involved in frequent incidents of a discreditable nature with civil or military authorities. Commander normally issued Soldiers an undesirable discharge under other than honorable conditions, except in cases where the particular circumstances showed either a general or an honorable discharge was appropriate. Commanders were to take action under this regulation when it was clearly established that, despite reasonable attempts to rehabilitate or develop the individual into a satisfactory Soldier, further effort was unlikely to succeed, or rehabilitation was impracticable and disposition under other regulations did not fit the Soldier's conduct or behavior. b. The Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 7. MEDICAL REVIEW: a. 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: Documentation is void of a psychiatric condition mitigating the basis of separation in- or post-service. Rather, in-service, the applicant was diagnosed with an Antisocial Personality Disorder which, although explains the misconduct, does not equate to an impairing condition mitigating misconduct. Accordingly, there is no medical mitigation. b. The applicant was discharged on 23 January 1964 under AR 635-208 28B, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities, with an Under Other Than Honorable characterization. The basis for separation involved multiple incidents of misconduct to include striking another Soldier in the head with a fist in July 1963, 1 day AWOL in September 1963, 15 day AWOL in October 1963, disrespect to subordinates and superiors, lack of proper attitude, multiple non-judicial punishments (NJP), numerous counseling statements, CID investigations, falling asleep in class, not having the proper forms to cover absences, not responding to attempts to repair, and a December 1963 Mental Health evaluation diagnosing Antisocial Personality Disorder recommending separation. Of note, the applicant received a moral waiver for charges of extortion and armed robbery. The applicant is requesting an Honorable characterization to obtain medical care and benefits. The applicant is not asserting a behavioral health diagnosis, Military Sexual Trauma (MST), or Intimate Partner Violence (IPV) c. Due to the period of service, electronic active duty medical records are void. d. The applicant is not service connected. Since 2017, the applicant has been receiving medical care. VA records are void of behavioral health visits, medications, or diagnoses. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members reviewed his statement, supporting evidence, and the service record. He was discharged with an under other than honorable conditions discharge due to being "Involved in Frequent Incidents of a Discreditable Nature with Civil or Military Authorities). He completed 6 months and 24 days of his 3-year reenlistment contract, with 16 days of lost time. Board members also reviewed the medical reviewer's assessment and found no mitigating factors for the applicant's misconduct. 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 xx: xx: xx: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members thoroughly reviewed the applicant's statement, supporting evidence, and the service record. 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 635-208 (Personnel Separations – Discharge – Unfitness), in effect at the time, established policies and procedures for the elimination of enlisted Soldiers who were found to be unfit for further military service. Soldiers discharged due to unfitness received an undesirable discharge, unless particular circumstances warranted a general or an honorable discharge. Commanders took action under this regulation when it was clearly established that, despite reasonable attempts to rehabilitate or develop the individual into a satisfactory Soldier, further effort was unlikely to succeed, or rehabilitation was impracticable and disposition under other regulations was inappropriate. The regulation listed the following reasons for separation under this provision: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion, to include lewd and lascivious acts, indecent exposure, or other indecent acts * drug addiction or possession of a habit forming narcotic or marijuana * an established pattern of shirking * an established pattern showing dishonorable failure to pay just debts 3. AR 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, prescribed guidance for character of service. a. Paragraph 9 (Honorable Discharge) stated an honorable discharge was a separation from the Army with honor. Separation authorities conditioned the issuance of an honorable discharge upon proper military behavior, and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. The Soldier had to meet the following qualifications: * Conduct ratings of at least "Good"; Efficiency rating of at least "Fair" * No convictions by a general court-martial * Not convicted more than once by a special court-martial * Notwithstanding the above-stated criteria, disqualifying entries can by outweighed by subsequent honest and faithful service over a greater period of time; additionally, careful consideration will be given to the nature of the offenses and sentence adjudged by a court-martial b. Paragraph 10 (General Discharge) stated a general discharge is a separation from the Army under honorable conditions for a Soldier whose military record is not sufficiently meritorious to warrant an honorable discharge. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) later superseded AR 635-208; in December 1976, AR 635-200 was revised following a civil suit settlement. a. The 1976 revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. In connection with these changes, the Army promulgated policy changes in a DA memorandum, dated 14 January 1977 (better known as the "Brotzman Memorandum"). This memorandum mandated the retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. c. A second DA memorandum, dated 8 February 1978 (known as the "Nelson Memorandum") expanded the review policy and stated the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. 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. 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. 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) AR20200010310 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1