ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  30 June 2021 DOCKET NUMBER:  AR20210006144 


APPLICANT REQUESTS:  His dishonorable discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 9 December 2019, with self-authored statement

.10 pages of service medical records

.DD Form 214 (Report of Separation from Active Duty), for the period ending29 December 1976

.three pages of Department of Veterans Affairs (VA) records

.three letters of support



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was fit for duty when he enlisted at age 17.  His recordsshow he was treated for a self-inflicted left wrist laceration; he was hospitalized as apsychiatric patient for seven days and was later hospitalized due to stress inducedsevere hives for six days.  Less than 30 days after his release from the hospital, he wassent home.  In 2020, he had a nervous breakdown while incarcerated.  At this time, hewas told he had post-traumatic stress disorder (PTSD), depression, and paranoidthoughts of persecution.

3.The applicant enlisted in the Regular Army on 13 February 1979.

4.The applicant accepted nonjudicial punishment (NJP) on 29 September 1976, underthe provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for larceny nand destruction of government property, on or about 6 September 1976.

5.A Clinical Record, dated 20 October 1976, shows the applicant was treated for alaceration of his left wrist.

6.Court-martial charges were preferred against the applicant on 19 November 1976,for violations of the Uniform Code of Military Justice (UCMJ).  The relevantDD Form 458 (Charge Sheet) shows he was charged with assaulting a fellow Soldier bycovering him with lighter fluid and igniting the fluid, on or about 17 November 1976.

7.A DA Form 3647-1 (Clinical Record Cover Sheet), dated 30 November 1976, showsthe applicant was evaluated for and afforded a diagnosis of situation adjustmentreaction of adolescence.

8.The applicant consulted with legal counsel on 17 December 1976 and was advisedof the basis for the contemplated trial by court-martial, the maximum permissiblepunishment authorized under the UCMJ, the possible effects of a bad conduct ordishonorable discharge and the procedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   

b.He was advised he could submit any statements he desired in his own behalf.His request for discharge indicates he submitted a statement; however, it is not available for review.  

9.The applicant's chain of command recommended approval of the applicant's requestfor discharge in lieu of trial by court-martial, and that he receive an undesirabledischarge.

10.The separation authority approved the applicant's request for discharge on23 December 1976, under the provisions of Army Regulation 635-200, Chapter 10, in
lieu of trial by court-martial, and directed that the applicant receive a DD Form 258A (Undesirable Discharge Certificate).   

11.A DA Form 3647-1, dated 26 December 1976, shows the applicant was treated forand diagnosed with Erythema Multiforme (hives).

12.The applicant was discharged on 29 December 1976, under the provisions of ArmyRegulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial.  The DD Form 214 he was issued confirms he was discharged in the lowestenlisted grade, his service was characterized as under other than honorable conditions(UOTHC), and he was issued an Undesirable Discharge Certificate.

13.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

14.The applicant's record documents no acts of valor, significant achievement, orservice warranting special recognition.

15.A VA Patient Summary, dated 27 February 2020 shows:

a.The applicant was diagnosed with unspecified disorder of adult personality andbehavior; mental disorder, not otherwise specified (NOS); hyperlipidemia; and Type 2 diabetes. 

b.It also shows he had a past medical history of mental disorder, NOS; paranoidschizophrenia; and an unspecified disorder of adult personality and behavior. 

16.The three letters of support from his family members all state that following theapplicant's period of service, he was a changed person.  He took up drinking and hestarted getting in trouble, including being charged with murder in 1983.  His wife left himout of fear of his violent behavior.  His mother stated she was afraid of him and he hadbegun to have hallucinations.

17.MEDICAL REVIEW:

a.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments 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:  Based on available documentation, the applicant did not and does not hold a psychiatric diagnosis that would mitigate the basis for 
separation.  Specifically, after three days of 24-hour observation and assessment, the applicant was not diagnosed in-service with a psychiatric illness.  Moreover, the applicant’s in-service report of symptoms occurred after the misconduct and there is no indication symptoms existed prior to the misconduct; it is as likely as not that the applicant’s distress was in relation to the consequences of his misconduct rather than a pre-existing behavioral health issue.  Lastly, the applicant applied lighter fluid and set the other Soldier on fire while the other Soldier was sleeping; there was no threat or imminent danger toward the applicant for consideration. Although the applicant submitted statements, his ex-wife noted the applicant indicated his actions were a choice. While his daughter’s statement indicated trauma, this is based on a hypothesis as the applicant has never disclosed a trauma to her.  Rather, submitted prison records support the applicant’s misconduct is more likely than not related to a Personality Disorder than a psychiatric illness. 
b.The applicant was discharged on 23 December 1976 under Chapter 10, In Lieu ofTrial by Court-Martial, with an Undesirable characterization. The basis for separation was the applicant assaulted another Soldier by covering him with lighter fluid, igniting the fluid, and setting the Soldier on fire. The applicant is requesting an Honorable characterization asserting he was diagnosed in 2020, while in prison for murder, with PTSD, Depression, and paranoid thoughts of persecution. While the applicant does not directly state or assert these diagnoses were present in-service and mitigate the basis, this is assumed for the purposes of the medical advisory. 
c.Due to the period of service, active duty electronic medical records are void.
d.The electronic case file contains a 23 November 1976 behavioral health noteindicating “hx of aggressive acting out under influence of alcohol.” The provider indicated the applicant was under stress in his unit and feared for his safety.  However, there is no further information if the fear for safety occurred prior to his misconduct or due to his misconduct; after setting another Soldier on fire, the applicant may have received threats from other Soldiers. The provider indicated the applicant reported limited sleep, loss of appetite, and difficulty controlling his anger.  However, it is unclear if these were present prior to the misconduct or due to his misconduct and possible repercussions.  Irrespective, the provider noted the applicant was not psychotic and had a normal mental status other than anxiety.  The provider noted they would admit the applicant to “allow situation in unit to cool off” rather than due to a psychiatric condition; he was diagnosed with Situational Adjustment Reaction of Adolescence. A 30 November 1976 discharge maintained the diagnosis of Situational Adjustment Reaction of Adolescence; after three days of 24-hour monitoring and assessment, the applicant was not diagnosed with a psychiatric illness. 
e.The applicant’s entrance physical is void of self-reported or known behavioralhealth symptoms, conditions, or treatment. The applicant’s separation physical indicates he endorsed frequent trouble sleeping, depression or excessive worry, and nervous trouble. 
f.The applicant is not service connected and VA records are void of contact.
g.Personnel records indicate in September 1976, the applicant unlawfully entered asnack bar, with the intent to commit larceny, by throwing a pipe and destroying the door. 
h.Personnel records indicate on 17 November 1976, the applicant squirted lighterfluid and ignited another Soldier on fire while he was sleeping. 
i.The applicant submitted a statement from a former wife noting the applicant toldher “he chose to douse them with lighter fluid and set them on fire” because they were “bothering” him. The applicant submitted a statement from his daughter who contended the applicant had PTSD from an in-service event; however, the applicant has never divulged a trauma to her. 
j.The applicant submitted a self-authored statement indicating he was scared of thedark and “believed I was seeing things and I was paranoid about other soldiers.” The applicant asserts after telling his SGT, he was “made fun (of) and they told the whole company that I was afraid of the dark” resulting in other Soldiers purposefully scaring him.  
k.The applicant submitted a February 2020 prison care summary which lists activediagnoses of Personality Disorder, Unspecified and Mental Disorder, NOS. The summary noted these conditions were initially diagnosed in July 2019 and verified on January 2020.  The summary notes the primary diagnosis was Personality Disorder; the applicant’s presentation and behavior was related to characterological issues rather than psychiatric illness. Past diagnoses were Personality Disorder Unspecified, Mental Disorder NOS, and Paranoid Schizophrenia; Paranoid Schizophrenia appears to have been removed after further assessment. The medication list does not contain psychiatric medications supporting the lack of a psychiatric illness. A notation from January 2020 indicated the applicant “does not endorse any mental health symptoms” and any ongoing intervention would be for “stress and anxiety.” While it is noted psychological testing would be beneficial, this would not be necessary if the applicant had a thought disorder or other psychiatric illness; a severe psychiatric illness presents with significant and notable symptoms not requiring psychological testing for confirmation. 
18.The Board should consider the applicant's statement for consideration of grantingrelief in accordance with the published equity, injustice, or clemency determinationguidance.

BOARD DISCUSSION: 

The Board carefully considered the applicants 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 medical records and the review and conclusions of the advising official.  The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct.  The applicant provided no evidence of post-service achievements, but he did provide 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. 

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 

:XX :XX :XX 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. 

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 or injustice.This provision of law also allows the ABCMR to excuse an applicant's failure to timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment includes a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate.   
 
4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 
 
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