IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20210014168 APPLICANT’S REQUEST: An upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 (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, in effect, racial discrimination affected his ability to serve. He received a general court-martial for leaving his unit in an absent without leave (AWOL) status. He was sent from Fort Lewis, WA to Fort Richardson, AK to chip ice for 6 months then he was sent back to Fort Lewis to be discharged. He never left his military post; he was at the wrong base (Fort Lewis) when he should have been at Fort Richardson. At the time, he was also suffering from a disability, undiagnosed bipolar disorder. He also requests reimbursement of lost pay and allowances. 3. A review of the applicant’s service record shows: a. On 16 February 1959, he enlisted in the Regular Army for 3 years. He served as a medical specialist, and the highest pay grade he achieved was pay grade E-2. On 2 November 1959, he was assigned to Fort Richardson with duties in his military occupational specialty. b. While in pretrial confinement for going AWOL, he underwent a psychiatric evaluation at the 5040th United States Air Force Hospital, Seattle, WA, after producing bizarre and unusual drawings that were found in his room. Initially, he was diagnosed with passive aggressive reaction. c. He complained that he did not want to return to Alaska, because he feared getting frostbite on his left foot. The evaluating psychiatrist believed he was trying to manipulate his assignment through medical channels. He showed no psychotic disorganization of the thought process, nor of emotional tone. d. He presented no distortion of mood or thinking and no gross abnormality of gait, posture, or facial expression. e. His mental content contained no true delusions or hallucinations; however, he expounded in a dramatic and unconvincing way about having seen the “snowman” an 8-foot-tall figure of legendary character. He showed an above average intelligence, and he was an extreme egocentric individual. He related amnesia 3 years ago. He felt in the stockade, he would “forget who I am and where I am.” f. He was afraid of the cold, disliked the Army, and wanted to get out of the Army. He planned to continue to run away until he was released. g. Diagnosis: Emotional instability reaction, chronic, moderate; manifested by historic aggravated behavior, purposely attempted to manipulate duty assignment, and avoid service in Alaska, episodes of alleged amnesia; stress – (routine military service). Predisposition – marked; impairment – moderate; Line of Duty (LOD): No, “Existed prior to service (EPTS).” h. Recommendations: The applicant was attempting to avoid military service by any means at his disposal. Although his personality structure was that of “emotional instability reaction,” the major problem was his lack of motivation, and his conscious and purposeful attempts to achieve release from duty obligations. i. There was no evidence that he now has, nor had any time in the past suffered from a psychotic mental disease nor any genuine amnesia. It was advised that he be considered for separation from service under the appropriate administrative regulations. j. He was determined to be mentally responsible and capable of participating in board proceedings or court-martial actions. There was no indication that any measure would make him a productive Soldier. There was no reason for medical disposition of this case. 4. General Court-Martial Order Number 2 shows he was arraigned and tried on 10 December 1959 for: a. CHARGE I: Violation of the Uniform Code of Military Justice (UCMJ), Article 95. * Specification I: Breaking arrest after being placed under arrest in quarters on 25 November 1959 * Specification II: Breaking arrest after being placed under arrest in quarters on 26 November 1959 b. CHARGE II: Violation of the UCMJ, Article 86. * Specification I: Being AWOL from his unit on 14 November 1959 * Specification II: Being AWOL from his unit from 26 to 29 November 1959 c. He pled guilty to all charges and was found guilty. d. On 18 January 1960, the court sentenced him to reduction to pay grade E-1, a forfeiture of all pay, and allowances, confinement at hard labor for 6 months, and the issuance of a bad conduct discharge (BCD). e. On 1 February 1960, the sentence was approved except for the part of the sentence extending to a BCD was ordered executed. f. The applicant was committed to the, to serve his confinement. 5. On 29 February 1960, the appellate review was completed, and the findings and the sentence were affirmed. Special Court-Martial Order 46 shows on 15 April 1960, the sentence was ordered duly executed. 6. On 21 April 1960, he underwent a medical examination and was found qualified for separation. 7. His DD Form 214 shows he was discharged on 22 April 1960 under conditions other than honorable for breaking restrictions twice and being AWOL twice. He completed 9 months and 13 days of his 3-year service obligation. This form also shows in: * Reason and Authority, AR 635-204, SPN 292 [Court-Martial] * Character of Service, “Under Conditions Other Than Honorable” * Net Service This Period, 0 9 13 * Foreign and/or Sea Service, 0 3 15 * Remarks, 144 Days Lost Under 10 U.S. Code 972 from “26 November 1959 to 26 November 1959, 29 November 1959 to 29 November 1959, 5 December 1959 to 31 January 1960, and 1 February 1960 to 22 April 1960” 8. AR 635-204 was superseded by AR 635-200 (Personnel Separations – Enlisted Personnel), which sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 9. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 10. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 11. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition and available records in support of the petition. 12. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting a discharge upgrade and referral to IDES asserting Bipolar Disorder. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), and his separation military documentation. b. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review. Applicant’s service record contains a summary of psychiatric evaluation that was conducted by an Army psychiatrist on 18 December 1959. The evaluation was requested after “bizarre and unusual drawings” were found in the room where he had been confined in the stockade. The evaluation listed a diagnosis of Emotional Instability Reaction, Chronic, Moderate. The evaluation recommended that applicant be considered for separation from the service under the appropriate administrative regulations while also stating that there was no indication for medical disposition of this case and that he was cleared for separation. c. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. d. After review of all available information, there is some evidence of a mitigating BH condition. Applicant was diagnosed in service with Emotional Instability Reaction, and applicant self-asserts having Bipolar Disorder at the time of service. Emotional Instability Reaction is an outdated condition no longer used by the American Psychiatric Association to classify a BH condition. However, it is the opinion of the Board’s Medical Advisor that the in service diagnosis of Emotional Instability Reaction is sufficient evidence to support applicant’s assertion that he had Bipolar Disorder during military service. Given the nexus between Bipolar Disorder and erratic behavior, impaired judgment, and impulsivity, applicant’s BH condition likely contributed to his breaking restrictions and going AWOL. As such, the Board should consider a discharge upgrade. e. With regards to applicant’s request for referral to IDES, there is no evidence that applicant’s BH condition fell below medical retention standards at the time of separation. On the contrary, the psychiatric evaluation conducted on 18 December 1959 indicated that applicant’s presentation did not warrant medical disposition, and that he met medical retention standards. Therefore, applicant’s request to be referred to IDES is not supported. KURTA FACTORS Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. Emotional Instability Reaction, Bipolar Disorder. Did the condition exist or experience occur during military service? Yes. Applicant was diagnosed in service with Emotional Instability Reaction and self- asserts having Bipolar Disorder during military service. Does the condition or experience actually excuse or mitigate the discharge? Yes. It is the opinion of the Board’s Medical Advisor that the in service diagnosis of Emotional Instability Reaction is sufficient evidence to support applicant’s assertion that he had Bipolar Disorder during military service. Given the nexus between Bipolar Disorder and erratic behavior, impaired judgment, and impulsivity, applicant’s BH condition likely contributed to his breaking restrictions and going AWOL. As such, the Board should consider a discharge upgrade. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense 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 regarding his mental health and the review and conclusions of the Board’s Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 2. The Board found sufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by a mental health condition. Based on a preponderance of evidence, a majority of the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 3. The member in the minority determined the evidence support changing the bad conduct discharge to under other than honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. AR 635-204 was superseded by AR 635-200, which set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. 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. 7. 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 to 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. 8. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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// ABCMR Record of Proceedings (cont) AR20210014168 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1