IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220009656 APPLICANT REQUESTS: reconsideration of his previous request for: * an upgrade of his bad conduct discharge (BCD) to a more favorable designation * a telephonic hearing with the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 18 July 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140011744 on 10 March 2015. 2. The applicant states, in effect, he was a victim of racial discrimination and bullying and he tried to report it to his chain of command. His constitutional rights were violated during the court-martial. He was denied counsel and he has not been charged with any crime since he was discharged in 1974. He also states that post-traumatic stress disorder and sexual assault / harassment is related to his request. 3. A review of the applicant's service records shows: a. On 9 December 1971, he enlisted in the Regular Army. b. On 20 June 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his unit from 10 June 1972 to 19 June 1972. His punishment consisted of forfeiture of $53.45 and restriction to his company area until his flight departure time (time and date were not specified). He did not appeal this punishment. c. On 25 September 1972, he accepted NJP under the provisions of Article 15, UCMJ, for being absent from his work call formation at Headquarters and Headquarters Company on or about 1800 hours, 25 September 1972. His punishment consisted of forfeiture of $45.00 for 1 month; 7 days or restriction and 7 days of extra duty; and reduction to private 2/E-2. The part of his punishment consisting of reduction to private 2/E-2 was suspended until 1 December 1972, unless vacated before that date. flight departure time (time and date were not specified). He did not appeal this punishment. d. The DD Form 458 (Charge Sheet), showing the charge and specification leading to an arraignment pursuant to a court-martial, is not contained in the applicant's available service records. e. Special Court Martial Order Number 18, issued by HQ, 3d Infantry Division, dated 5 March 1973, shows that after pleading not guilty to one specification of violation of Article 128 of the UCMJ, he was found guilty of assault upon Private RHB___ by stabbing him four times in the chest and shoulder with a knife on 1 October 1972, and thereby did intentionally inflict grievous bodily harm, to wit: three stab wounds in the chest area and one stab wound in the right shoulder. He was sentenced to be reduced to the grade of E-1, to be discharged from the service with a Bad Conduct Discharge. The sentence was adjudged on 8 December 1972. f. The General Court-Martial Convening Authority, Commanding General, HQ, 3d Infantry Division, approved the sentence and forwarded the record of trial to the Judge Advocate General of the Army for review by the Court of Military Review. g. The U.S. Army Court of Military Review decision is not contained in the applicant's available records. h. Special Orders Number 065, dated 6 March 1973, reassigned him to for separation processing with separation authority of Army Regulation 635-200, Chapter 11, and HQ, 3rd Infantry Division, SCMO Number 18. The separation program designator was 292. i. Letter Orders Number 3-159, dated 26 March 1973, issued by HQ, 101st Airborne Division authorized him excess leave pending appellate review of his punitive discharge. j. His DA Form 20 (Enlisted Qualification Record) shows he was authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14). k. On 10 May 1974, he was discharged. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 11, with separation program designator of 292, and a character of service of under other than honorable conditions. It further shows: * his grade and pay grade were private/E-1 * he completed 2 years, 5 months, and 2 days of total active service * 411 days of excess leave l. There is no evidence of record showing he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. m. In ABCMR Docket Number AR20140011744, dated 10 March 2015, the Board noted that the finality of a court-martial conviction is prohibited by law and is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. The Board noted there was no basis for granting the applicant's requested relief. 5. 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 determination guidance. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his request for an upgrade to an Under Honorable Conditions nature of discharge. He asserts he was experiencing PTSD, racial discrimination, and sexual assault/harassment, which contributed to his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 9 December 1971; 2) Before a special court-martial on 5 March 1973, the applicant was found guilty of assault by stabbing another Soldier four times in the chest and shoulder with a knife; 3) The applicant was discharged on 10 May 1974, Chapter 11. His characterization of service was UOTHC; 4) The Board reviewed and denied the applicant's petition for an upgrade on 10 March 2015. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional civilian medical documents were provided. d. The applicant contends he was experiencing racial discrimination, sexual harassment/assault, and PTSD while on active service, which contributed to his misconduct. There is insufficient evidence the applicant was diagnosed with any mental health condition including PTSD while on active service. A review of JLV was void of behavioral health medical records, and the applicant receives no service-connected disability. Lastly, the applicant did not provide any documentation of being diagnosed with any behavioral health condition including PTSD since his discharge from active service. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, the applicant contends he was experiencing racial discrimination, sexual harassment/assault, and PTSD that contributed to his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing racial discrimination, sexual harassment/assault, and PTSD while on active service. 3. Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing racial discrimination, sexual harassment/assault, and PTSD while on active service. In addition, there is no nexus between racial discrimination, sexual harassment/assault, and PTSD and the applicant’s misconduct of stabbing another Soldier given that: 1) this type of misconduct is not part of the natural history or sequelae of racial discrimination, sexual harassment/assault, and PTSD; 2) racial discrimination, sexual harassment/assault, and PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing racial discrimination, sexual harassment/assault, and PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board found no medical evidence and he provided no medical evidence which shows he was diagnosed with PTSD at any time during or subsequent to his military service. Furthermore, the Board found insufficient evidence to show PTSD symptoms were attributed to his military service or were a causative factor in the misconduct resulting in his discharge. The Board noted, the applicant provided no post service achievements or character letters of support that might have mitigated the applicant’s characterization of service. 2. The Board found insufficient evidence beyond self-report the applicant was experiencing racial discrimination, sexual harassment/assault, and PTSD while on active service. In addition, the Board agreed based on the advising opine, there is no nexus between racial discrimination, sexual harassment/assault, and PTSD and the applicant’s misconduct of stabbing another Soldier given that: 1) this type of misconduct is not part of the natural history or sequelae of racial discrimination, sexual harassment/assault, and PTSD; 2) racial discrimination, sexual harassment/assault, and PTSD do not affect one’s ability to distinguish right from wrong and act in accordance with the right. ABCMR 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. 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20140011744 on 10 March 2015. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, Title 10, U.S.C., § 1552, this Board 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. The ABCMR does not have authority to set aside a conviction by a court-martial. 3. Title10, U.S.C, § 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time established policy and prescribed procedures for the elimination of enlisted personnel for a variety of reasons. a. An honorable discharge is a separation with honor and entitles the recipient to benefits 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. c. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. d. Chapter 11 provided that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 5. The Manual for Courts-Martial United States (2012 Edition) consist of the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedures and should be consistently applied with the purpose of military law. a. Rule 706 (Inquiry into the mental capacity or mental responsibility of the accused). If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule. b. Article 71(c) of the UCMJ stipulates that if a sentence extends to death, dismissal, or dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived and an appeal is not withdrawn, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is final judgment as to the legality of the proceedings. A judgement as to legality of the proceedings is final in such cases when review is completed by a Court of Military Review. 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 under other than honorable conditions 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. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 8. 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 based on 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. 9. Title 10, U.S.C., § 1556, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009656 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1